appellate jurisdiction in ohio over final appealable orders

Cleveland State Law Review Cleveland State Law Review

Volume 50 Issue 4 Article

2003

Appellate Jurisdiction in Ohio over Final Appealable Orders Appellate Jurisdiction in Ohio over Final Appealable Orders

Gary L. Garrison Law Clerk, State of Ohio, Fourth District Court of Appeals

Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev

Part of the Courts Commons, and the Jurisdiction Commons

How does access to this work benefit you? Let us know! How does access to this work benefit you? Let us know!

Recommended Citation Recommended Citation Gary L. Garrison, Appellate Jurisdiction in Ohio over Final Appealable Orders, 50 Clev. St. L. Rev. 595 (2002-2003)

This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected].

https://engagedscholarship.csuohio.edu/clevstlrev

https://engagedscholarship.csuohio.edu/clevstlrev/vol50

https://engagedscholarship.csuohio.edu/clevstlrev/vol50/iss4

https://engagedscholarship.csuohio.edu/clevstlrev/vol50/iss4/4

https://engagedscholarship.csuohio.edu/clevstlrev?utm_source=engagedscholarship.csuohio.edu%2Fclevstlrev%2Fvol50%2Fiss4%2F4&utm_medium=PDF&utm_campaign=PDFCoverPages

http://network.bepress.com/hgg/discipline/839?utm_source=engagedscholarship.csuohio.edu%2Fclevstlrev%2Fvol50%2Fiss4%2F4&utm_medium=PDF&utm_campaign=PDFCoverPages

http://network.bepress.com/hgg/discipline/850?utm_source=engagedscholarship.csuohio.edu%2Fclevstlrev%2Fvol50%2Fiss4%2F4&utm_medium=PDF&utm_campaign=PDFCoverPages

http://library.csuohio.edu/engaged/

mailto:[email protected]

595

APPELLATE JURISDICTION IN OHIO OVER FINAL

APPEALABLE ORDERS

GARY L. GARRISON1

I. INTRODUCTION .................................................................... 596

II. STATUTORY BACKGROUND.................................................. 598

III. ORDERS AFFECTING A SUBSTANTIAL

RIGHT THAT DETERMINE AN ACTION .................................. 600

A. Substantial Rights ........................................................ 600

B. Determines the Action.................................................. 601

C. Prevents a Judgment.................................................... 603

D. Examples...................................................................... 603

IV. ORDERS AFFECTING A SUBSTANTIAL

RIGHT MADE IN A SPECIAL PROCEEDING ............................. 607

A. The Pre-Amato Classification of a

Special Proceeding ...................................................... 608

B. Amato v. General Motors ............................................ 612

C. Post-Amato .................................................................. 616

D. Examples...................................................................... 626

V. ORDERS THAT VACATE OR SET ASIDE A

JUDGMENT OR GRANT A NEW TRIAL ................................... 627

VI. ORDERS THAT GRANT OR DENY A

PROVISIONAL REMEDY ........................................................ 629

VII. ORDERS DETERMINING CLASS

ACTION STATUS................................................................... 635

VIII. MULTIPLE CLAIMS AND/OR MULTIPLE PARTIES .................. 637

A. Ohio R. Civ. P. 54(B) Applies Only to Claims............. 639

B. The Claim Appealed Must Still be

Final Under Ohio Revised Code 2505.02.................... 640

C. The Trial Court Must Find “No Just

Reason for Delay” to Make the Order Appealable ..... 641

IX. CONCLUSION........................................................................ 642

1BA, Ohio State University, 1984; JD, Capital University Law School, 1987; LLM,

Capital University Law School, 1991. Law Clerk, State of Ohio, Fourth District Court of

Appeals. The opinions expressed herein are strictly my own and do not necessarily reflect the

policies of the Fourth Appellate District or the views of its judges.

1Published by EngagedScholarship@CSU, 2003

596 CLEVELAND STATE LAW REVIEW [Vol. 50:595

I. INTRODUCTION

Appellate jurisdiction is an area of the law rarely given much thought by courts

and trial practitioners. This is not surprising. Only a fraction of the lawsuits filed

each year are fully litigated and an even smaller percentage of those are ever

appealed. Judges and practitioners therefore spend more time mastering

jurisdictional and procedural requirements for trial courts than they do for appellate

courts. Nevertheless, when appellate review of a trial court judgment is sought,

counsel must have a working knowledge of the rules governing the power of courts

of appeals to hear a case. Fortunately, there are just two jurisdictional requirements

to be met in Ohio before the judgment of a trial court can be reviewed in an appellate

court. The first is that the judgment being appealed is a final, appealable order and

the second is that the notice of appeal from that judgment is filed within the time

frame prescribed by Ohio R. App. P. 4.2 This article addresses the first of these two

requirements - the so-called “final order rule.”

The Ohio Constitution specifies that the state’s twelve district courts of appeals

shall have appellate jurisdiction, as provided by law, to review and affirm, modify or

reverse “final orders” of inferior courts within their district.3 This sounds simple

enough but the Constitution does not specify what constitutes a “final order” and

determining whether an order is “final” oftentimes involves the use of arcane and

convoluted rules which make the whole process seem, at best, esoteric and, at worst,

pointlessly hyper-technical. Be that as it may, the question of an order’s finality is

critically important. If a judgment is not final, or if it is final but does not comply

with applicable procedural rules, an appellate court has no jurisdiction to review it

and the appeal must be dismissed.4 This is so even when parties to the appeal do not

raise the issue themselves.5 Thus, practitioners who mistakenly believe an order is

2Parties generally have a thirty (30) day window of opportunity to file a notice of appeal

after the trial court enters judgment. Ohio R. App. P. 4(A). This time frame is mandatory and

jurisdictional. See State, ex rel. Boardwalk Shopping Ctr., Inc. v. Court of Appeals for

Cuyahoga County, 564 N.E.2d 86, 89 (Ohio 1990); Kaplysh v. Takieddine, 519 N.E.2d 382, at

paragraph one of the syllabus (Ohio 1988); Moldovan v. Cuyahoga County Welfare Dep’t.,

496 N.E.2d 466, 467 (Ohio 1986). There are, however, several exceptions. See, e.g., Ohio R.

App. P. 4(B)(2) (tolling commencement of the thirty day time limit in certain instances), Ohio

R. App. P. 4(B)(4) (mandating that criminal appeals by prosecutors pursuant to Crim. R. 12(k)

or Ohio R. Juv. P. 22(F) be filed within seven days) and Ohio R. App. P. 5 (allowing criminal

defendants to file motions seeking delayed appeal).

3Ohio Const. art. IV, § 3(B)(2). The term “appellate jurisdiction” is used in contrast to the

courts’ original jurisdiction over the writs of quo warranto, mandamus, habeas corpus,

prohibition and procedendo. Id. at (B)(1)(a)-(e).

4Davison v. Rini, 686 N.E.2d 278, 281 (Ohio Ct. App. 1996); Prod. Credit Assn. v.

Hedges, 621 N.E.2d 1360, 1362 n.2 (Ohio Ct. App. 1993); Kouns v. Pemberton, 617 N.E.2d

701, 702 (Ohio Ct. App. 1992).

5Subject matter jurisdiction cannot be waived, see Weathersfield Twp. v. Trumbull County

Budget Comm’n, 632 N.E.2d 1281, 1282 (Ohio 1994); Shawnee Twp. v. Allen County Budget

Comm’n, 567 N.E.2d 1007, 1009 (Ohio 1991); Painesville v. Lake County Budget. Comm’n,

383 N.E.2d 896, 898 (Ohio 1978), and a lack of such jurisdiction can be raised any time

during the course of the proceedings including for the first time on appeal. See Fox v. Eaton

Corp., 358 N.E.2d 536, 537 (Ohio 1976) overruled on other grounds by Manning v. Ohio

State Library Bd., 577 N.E.2d 650 (Ohio 1991); Jenkins v. Keller, 216 N.E.2d 379, at

2https://engagedscholarship.csuohio.edu/clevstlrev/vol50/iss4/4

2002-03] APPELLATE JURISDICTION IN OHIO 597

final and appealable waste time and their client’s money by filing an appeal that will

ultimately be dismissed. Conversely, if the judgment is erroneously thought not to

be final, counsel may be left open to potential malpractice liability for failing to file

an appropriate notice of appeal and preserving the rights of the client.6

The criteria for determining whether an order is final and appealable are set out

in Section 2502.02 of the Ohio Revised Code and, where applicable, Ohio R. Civ. P.

54(B). However, the interpretation and application of these rules have been uneven

at best. Appellate procedure is a branch of law where simplicity, clarity and

consistency are particularly important.7 Unfortunately, over the years, the Ohio

Supreme Court has fallen far short of those ideals and its jurisprudence in this area

has been anything but clear and consistent. One appellate judge laments that,

whenever the final order issue rears “its ugly head,” the Supreme Court unleashes

upon the legal community “such a poignant pendulum of vacillation” that he is left

“utterly and confoundedly confused.”8 If the number of appeals being dismissed for

lack of a final order are any indication, so too are many attorneys and trial court

judges.9

This article focuses on the rules for determining finality and appealability of

judgments under section 2505.02 and Ohio R. Civ. P. 54(B). To that end, this article

addresses not only the various categories of “final orders” but also the procedural

mechanisms by which interlocutory appeals are taken from judgments on one part of

a case while the rest of the case remains pending. The objective of this article is

two-fold. First and foremost, it provides a resource and guide to appellate

practitioners and trial court judges for understanding the “final order rule” and for

navigating its various provisions in the courts of appeals. The second objective is to

address some of the theoretical problems and inconsistencies underlying the Ohio

Supreme Court’s jurisprudence in this area and, where possible, to suggest a more

consistent approach to adjudicating whether a judgment is final and appealable. The

process for determining finality and appealability is much more complex and

convoluted than it needs to be and the goal of this article is to contribute to the

paragraph five of the syllabus (Ohio 1966). Moreover, when the parties to an appeal neglect

to raise and brief a jurisdictional issue themselves, the appellate court is required to raise it sua

sponte and dismiss an appeal which is not from a final appealable order. See In re Murray,

556 N.E.2d 1169, 1174 n.2 (Ohio 1990); Whitaker-Merrell v. Geupel Constr. Co., 280 N.E.2d

922, 924 (Ohio 1972).

6When in doubt, practitioners may file successive notices of appeal whenever an order

arguably appears to be final and appealable so as to preserve the right to appeal and to protect

them from liability. Such practice clogs the court system even further and is a waste of

judicial resources. See Mark J. Chumky, Fairness and Finality: Rethinking Final Appealable

Orders Under Ohio Law, 64 U. CIN. L. REV. 143 (1995).

7Gray v. Youngstown Mun. Ry. Co., 117 N.E.2d 27, 31 (Taft, J., concurring) (Ohio 1954)

(emphasis in original).

8In re Estate of Pulford, 701 N.E.2d 55, 56-57 (Ohio Ct. App. 1997) (Ford, P.J., writing

for a unanimous court).

9Specific records are not kept as to the number of dismissals for jurisdictional reasons in

general or lack of a final order in particular. However, I have worked on innumerable cases

over the years that have been dismissed for that very reason.



bench’s and the bar’s understanding of these rules and also make the process simpler

and more consistent.

II. STATUTORY BACKGROUND

As noted before, the Ohio Constitution vests the state courts of appeals with

appellate jurisdiction over final orders.10 However, the Constitution does not spell

out what constitutes a “final order.” This is an issue left, in the first instance, to the

General Assembly to define by statute and then to the courts as they try to interpret

and apply those statutes. For many years, section 2505.02 simply defined a “final

order” as an order which fell into one of three categories: (1) an order affecting a

substantial right which, in effect, determined the action; (2) an order affecting a

substantial right made in a special proceeding or upon a summary application after

judgment; and (3) an order which vacated or set aside a judgment or granted a new

trial.11 This classification scheme provided a more or less workable standard until

the 1980s and 1990s when several troubling cases arose concerning issues of

privilege and confidentiality.

One such case was Walters v. The Enrichment Ctr. of Wishing Well, Inc.12

wherein two parents filed suit against a daycare center which allegedly made a false

report of child abuse against them in retaliation for the parents having filed a

complaint with police accusing the daycare center of leaving the children in its care

unattended. The parents made various discovery requests seeking, among other

things, child abuse reports thought to be confidential. Not surprisingly, the daycare

center moved for a protective order, which the trial court granted in part and denied

in part. An immediate appeal was taken as to that portion of the order, allowing

discovery of some of the documents. The Cuyahoga County Court of Appeals found

that it had jurisdiction to review the case and then held that the trial court erred in

allowing the discovery. The case was appealed to the Ohio Supreme Court, which

found that the trial court’s judgment was not a final appealable order.13 In so

holding, the Court acknowledged that various policy concerns weighed in favor of

making the trial court’s order immediately appealable. The Court nevertheless

10Ohio Const. art. IV, § 3(B)(2). See text at note 3.

11The statutory antecedent for OHIO REV. CODE § 2505.02 first appeared in 1935 when the

General Assembly enacted a “simplified method of appellate review” and defined a final order

as any order affecting a substantial right which either determined the action and prevented a

judgment or was entered in a special proceeding or upon summary application in an action

after judgment. See H.B. No. 42, 116 Ohio Laws 104, 105 (codified at former Ohio General

Code Section 12223-2). The third category (i.e. an order vacating or setting aside a judgment

or ordering a new trial) was added two years later. See Am.H.B. No. 87, 117 Ohio Laws 615.

However, that legislation was struck down as an unconstitutional enlargement of appellate

court jurisdiction over orders granting a new trial. Hoffman v. Knollman, 20 N.E.2d 221, at

paragraph four of syllabus (Ohio 1939). The Constitution was amended, effective in 1945,

and the General Assembly passed legislation two years later reclassifying a judgment, which

ordered a new trial as a final order. See H.B. No. 86, 122 Ohio Laws 754. These categories

were carried over when the General Code was replaced with the Ohio Revised Code in 1953

and survived without major changes until 1998.

12676 N.E.2d 890 (Ohio 1997).

13Id. at 894.



concluded that those concerns were better addressed to the General Assembly for

that body to “consider modifying section 2505.02.”14 Until such time as the statute

was amended, the Court held, no appeal could be taken from the discovery order

unless the entire case was also resolved.

The General Assembly responded shortly thereafter with Sub.H.B. No. 394 to

address the policy concerns and statutory interstices pointed out by the Supreme

Court.15 This legislation amended section 2505.02 and, among other things, enlarged

the previous three categories of final orders into the following five categories:

“(1) An order that affects a substantial right … that in effect determines the

action and prevents a judgment;

(2) An order that affects a substantial right made in a special proceeding or upon

a summary application in an action after judgment;

(3) An order that vacates or sets aside a judgment or grants a new trial;

(4) An order that grants or denies a provisional remedy …

(5) An order that determines that an action may or may not be maintained as a

class action.”16

Each of these five categories is discussed in varying degrees in this article. As a

practical matter, most final orders come under the first two categories - i.e. those that

determine the action and prevent a judgment or those that are entered in a special

proceeding - and thus they receive the most attention.17 Conversely, several

categories are relatively self-explanatory–e.g. orders that vacate or set aside a

judgment or grant a new trial and orders that determine whether an action can be

maintained as a class action - and they are only briefly discussed. Finally, this article

delves into the new category of final orders concerning judgments that grant or deny

a provisional remedy. This new category was created in response to Walters and was

meant to ameliorate the harsh results that could occur if an immediate appeal is not

allowed on highly sensitive matters involving confidentiality, privilege, etc.

When analyzing the various provisions of section 2505.02, as well as the other

procedural rules affecting appealability of judgments, courts and practitioners should

keep in mind Ohio’s strong public policy interest in avoiding “piecemeal” appeals

during the pendency of an action.18 Ohio law favors the prompt and orderly disposal

14Id. at 894 n.2.

15147 Ohio Laws, Part II, 3277.

16OHIO REV. CODE § 2505.02(B)(1)-(5).

17Of the two, orders entered in a special proceeding have proven the most problematic and

are given the most attention herein. It should also be noted that determining which of these

two categories to apply is not always easy. On several occasions, a majority of the Supreme

Court has analyzed an order under the first category and looked at whether that order

determined the action and prevented a judgment, see, e.g., In re Murray, 556 N.E.2d at 1171,

Stewart v. Midwestern Indemn. Co., 543 N.E.2d 1200, 1202 (Ohio 1989), only to have one or

more Justices opine that the case should have been analyzed under the second category of the

statute with an eye toward whether or not the order was entered in a special proceeding.

Murray, 556 N.E.2d at 1175 (Douglas, J., concurring); Stewart, 543 N.E.2d at 1203-06

(Douglas & Wright JJ., dissenting). This is just another example of the high degree of

confusion surrounding this area of the law.

18See Denham v. New Carlisle, 716 N.E.2d 184, 187 (Ohio 1999); City of Columbus v.

Adams, 461 N.E.2d 887, 890 (Ohio 1984).



of litigation19 and the entertainment of appeals from various orders made by the trial

court during the pendency of an action does not further that policy.20 It should also

be noted that strict application of the final order rule is not simply a convenience for

appellate courts. By requiring that appeals generally wait until the entire case is

resolved, litigants are spared the time-consuming process of judgment and appeal on

individual issues in a case and the interminable wait that such a process would cause

for resolving the entire action. The final order rule also preserves judicial resources,

and thus benefits taxpayers, by requiring that a case be reviewed all at once, in a

single appeal, rather than in numerous piecemeal appeals over time. These

considerations, convenience to litigants and conservation of judicial resources,

should be the polestars by which section 2505.02 and the other procedural rules are

interpreted and applied.

III. ORDERS AFFECTING A SUBSTANTIAL RIGHT THAT DETERMINE AN ACTION

The first category of final orders under section 2505.02 are those which affect a

substantial right and, in effect, determine the action and prevent a judgment.21 These

are the traditional types of judgments usually thought of as being final and

appealable. They determine the entire case, or a distinct portion thereof, such that it

will not be necessary to bring the case back before the court for further

proceedings.22 By definition, in order to be appealable under this category, the

judgment must (1) affect a substantial right, (2) effectively determine the action, and

(3) prevent a judgment.23 A brief discussion of these three criteria follows.

A. Substantial Rights

Before a judgment can be deemed final and appealable under this first category

of the statute, it must affect a substantial right.24 Prior to Sub.H.B. No. 394, there

was no statutory definition of a “substantial right.” Courts simply defined the

concept as any legal right enforced and protected by law.25 In 1998, however, the

Ohio General Assembly codified the definition of “substantial right” to mean a right

that the United States Constitution, the Ohio Constitution, a statute, common law or

rule of procedure entitles a person to enforce or protect.26 Practitioners will want to

19State, ex rel. Celebrezze v. K&S Circuits, Inc., 453 N.E.2d 653, 654 (Ohio 1983);

Bernbaum v. Silverstein, 406 N.E.2d 532, 534 (Ohio 1980).

20Squire v. Guardian Trust Co., 68 N.E.2d 312, 314 (Ohio 1946).

21OHIO REV. CODE § 2505.02(B)(1).

22See Lantsberry v. Tilley Lamp Co., 272 N.E.2d 127, 129 (Ohio 1971); Teaff v. Hewitt, 1

Ohio St. 511, 520 (Ohio 1853).

23Cleveland v. Trzebuckowski, 709 N.E.2d 1148, 1150 (Ohio 1999); State ex rel. Hughes

v. Celeste, 619 N.E.2d 412, 414 (Ohio 1993).

24OHIO REV. CODE § 2505.02(B)(1).

25See, e.g., State ex rel. Hughes, 619 N.E.2d at 414; State ex rel. White v. Cuyahoga

Metro. Hous. Auth., 684 N.E.2d 72, 74 (Ohio 1997); Noble v. Colwell, 540 N.E.2d 1381,

1383 (Ohio 1989).

26OHIO REV. CODE § 2505.02(A)(1). One eminent treatise has noted that the statute does

not include any express reference to rights created by municipal ordinance. See Whiteside,



take care to pinpoint the precise source of whatever substantial right they assert to be

involved. In State v. Coffman, the Ohio Supreme Court ruled that the Ohio Revised

Code did not create “a legal right to shock probation” even though a statute vested

trial courts with discretion as to whether to grant such probation.27 This would

suggest that the legal authority for whatever right is asserted must be affirmatively

shown and will not be assumed to exist implicitly.28

Even if the right involved in the case is a substantial right, the order appealed

must still affect that right in order to be deemed appealable. An order is said to

affect a substantial right if it is one that, if not appealable, would foreclose

appropriate relief in the future.29 In order to successfully assert that an order affects a

substantial right, a party must demonstrate that, in the absence of immediate review

of the order, that party will be denied effective future relief.30 It is not enough that

the order appealed merely restricts or limits that right.31 Rather, there must be

virtually no opportunity in the future to provide relief from the allegedly prejudicial

order.32

B. Determines the Action

In addition to affecting a substantial right, the order must also determine the

action. The question of whether an order determines the action cannot be

determined solely by the nature of the order, but must be ascertained from the effect

that the order has on the pending case.33 An order determines the action when it

OHIO APPELLATE PRACTICE, § T2.11, at 48 (2003). This is true. However, the 1998 statutory

amendments notwithstanding, many courts still apply the broader judicial definition of a

substantial right. See, e.g., Trzebuckowski, 709 N.E.2d at 1150. The argument could also be

made that, since ordinances are adopted by municipal corporations pursuant to statutes giving

them legislative authority, see OHIO REV. CODE Chapter 731, the rights granted by municipal

ordinance are derivative of statute and should be implicitly included in the statutory definition

of a “substantial right.”

27742 N.E.2d 644, 646 (Ohio 2001).

28The Court’s reasoning on this issue was flawed. While state law may not have created a

“legal right to shock probation,” it did create an implied right to be fairly considered for such

release. Were it otherwise, and there was no such right, then there would be no reason to vest

trial courts with discretion in determining whether to grant release. Moreover, under the

Court’s reasoning, a prisoner could be denied probation on racial or even religious grounds but

have no recourse on appeal.

29See Bell v. Mt. Sinai Med. Ctr., 616 N.E.2d 181, 184 (Ohio 1993).

30See Konold v. R.W. Sturge, Ltd., 670 N.E.2d 574, 576 (Ohio Ct. App. 1996);

Rhynehardt v. Sears Logistics Services, 659 N.E.2d 375, 377 (Ohio Ct. App. 1995); Kelm v.

Kelm, 639 N.E.2d 842, 845 (Ohio Ct. App. 1994).

31State v. Chalender, 649 N.E.2d 1254, 1255-56 (Ohio Ct. App. 1994).

32Id.

33State v. Eberhardt, 381 N.E.2d 1357, 1361 (Ohio Ct. App. 1978); Sys. Constr., Inc. v.

Worthington Forest Ltd., 345 N.E.2d 428, 429 (Ohio Ct. App. 1975). In some instances,

however, the title attached to the order can be a pretty good indication of its finality. For

example, an interim order set to expire at a specific date by definition does not determine the

action and prevent a judgment. See Barker v. Barker, 693 N.E.2d 1164, 1168 (Ohio Ct. App.

Ohio Ct. App. 1997).



disposes of all the issues in the case leaving nothing for further adjudication.34 That

is to say, the order is final in the truest sense of the word because it terminates the

entire proceeding. For instance, an order rejecting a magistrate’s decision and

setting a matter for trial de novo does not “determine the action”35 nor does a

judgment which determines liability but defers the determination of damages for

future resolution.36 In both of these cases, there are further proceedings that must

take place. Neither order effectively determines the action, hence, neither order is

appealable. There are some exceptions, however. In mortgage foreclosures,

judgments determining that a mortgage constitutes the first and best lien on property,

and ordering that such lien be foreclosed and the property sold at sheriff’s sale, is a

final order from which an appeal should be perfected notwithstanding that a

confirmation entry directing distribution of proceeds will be filed after sale.37

Another way to look at this issue is to contrast judgments that determine an

action with interlocutory orders.38 The focus of an interlocutory order is not to

determine the rights of the parties, but to give trial courts more discretion in

determining the manner in which litigation proceeds.39 An interlocutory ruling

remains subject to change or modification at any time before entry of final

judgment.40 However, after final judgment is entered, the trial court is generally

divested of its ability to amend any interlocutory rulings41 or the final order itself.42

34Legg v. Fuchs, 746 N.E.2d 1195 (Ohio Ct. App. 2000); Twinsburg v. Bucky Arnes, Inc.,

No. 9677, 1980 Ohio App. LEXIS 11498 (Ohio Ct. App. Sept. 17, 1980).

35AAA Pipe Cleaning Corp. v. Arrow Unif. Rental, Inc., No. 74215, 1999 Ohio App.

LEXIS 3381 (Ohio Ct. App. July 22, 1999).

36Bautista v. Kolis, 754 N.E.2d 820 (Ohio Ct. App. 2001); Jones v. White, No. 00CA644,

2000 Ohio App. LEXIS 2055 (Ohio Ct. App. July 10, 2000).

37See, e.g., Third Nat’l Bank of Circleville v. Speakman, 480 N.E.2d 411, 412 (Ohio

1985); Oberlin Sav. Bank Co. V. Fairchild, 194 N.E.2d 580, 581 (Ohio 1963); Queen City

Sav. & Loan Co. v. Foley, 165 N.E.2d 633, at paragraph one of the syllabus (Ohio 1960).

38Judgments are generally classified as either final or interlocutory. See 63 OHIO JUR. 3D

Judgments § 257 (1985). “Interlocutory” means provisional or temporary and not final.

BLACK’S LAW DICTIONARY 731 (5th ed. 1979).

39See John Hunt, Determining Whether a Judicial Order is Final and Appealable Under

Ohio Law, 58 CIN. L. REV. 1337, 1340 (1989-1990).

40D’Agastino v. Uniroyal-Goodrich Tire Co., 717 N.E.2d 781, 785 (Ohio Ct. App. 1998);

Corradi v. Gene Norris Honda, Inc., 667 N.E.2d 416, 417 (Ohio Ct. App. 1995).

41State v. Johnson, 601 N.E.2d 555, 559 (Ohio Ct. App. 1991); State v. Snedegar, No. C-

980078, 1999 Ohio App. LEXIS 3297 (Ohio Ct. App. July 16, 1999).

42See Harkai v. Scherba Indus., Inc., 736 N.E.2d 101, 103 (Ohio Ct. App. 2000). Once

final judgment is entered, all interlocutory rulings merge into the final order and become

appealable at that time. See also Horner v. Toledo Hosp., 640 N.E.2d 857 (Ohio Ct. App.

1993); Safe Auto Ins. Co. v. Perry, No. 00AP-722, 2001 Ohio App. LEXIS 195 (Ohio Ct.

App. Jan. 25, 2001); Bard v. Society Nat’l Bank, No. 97APE11-1497, 1998 Ohio App. LEXIS

4187 (Ohio Ct. App. Sept. 10, 1998).



C. Prevents a Judgment

Finally, in addition to affecting a substantial right and determining the action, the

order in question must also prevent a judgment. Where an order affects a complete

resolution of all claims and issues in a case, it essentially prevents a judgment

inconsistent therewith.43 In other words, an order prevents a judgment if it divests a

right in such a manner as to put it beyond the power of the court making the order to

place the parties back in their original condition.44 This may appear like nothing

more than a mirror image of the requirement that an order determine the action.

However, in Cleveland v. Trzebuckowski,45 the Ohio Supreme Court made clear that

this is a completely independent criteria. In Trzebuckowski, the city of Cleveland

appealed a decision by the Cleveland Municipal Court dismissing a criminal case on

the grounds that a municipal ordinance was unconstitutional.46 The judgment entry

granting the dismissal was prepared June 22, 1995, but not journalized with the clerk

until September 12, 1995. The city filed its notice of appeal on August 28, 1995, but

appellee moved to dismiss arguing that the appeal was not timely. The Court of

Appeals apparently denied the motion because it proceeded to address the case on its

merits. However, the jurisdictional argument was addressed by the Ohio Supreme

Court, which concluded that the appeal was timely because the order was not final

until journalized on September 12, 1995.47 The Court agreed that the Municipal

Court decision dismissing the criminal case affected a substantial right and

determined the action. Until journalized, though, the entry did not prevent further

judgment since the trial court could vacate the judgment and set the matter for trial.48

Thus, the unjournalized judgment was not a final order and the time limit for filing a

notice of appeal had not run.49

D. Examples

A considerable body of case law has developed addressing whether certain

judgments are final orders under section 2505.02(B)(1). Time and space constraints

simply do not allow for an exhaustive list and discussion of those various judgments

43See Sys. Constr., Inc., 345 N.E.2d at 428 (order appealed from required the parties to

submit entire matter to arbitration thus there could be no further judgment on the complaint or

cross-complaint); Harvey v. Civil Serv. Comm’n of Cincinnati, 501 N.E.2d 39, 41 (Ohio Ct.

App. 1985) (order affected complete satisfaction of plaintiff’s cause of action and prevented

any form of judgment in defendant’s favor); Puthoff v. Owens-Illinois Glass Co., 31 N.E.2d

684, 686 (Ohio Ct. App. 1938) (test of an order’s finality is whether the court’s power to

change the judgment has terminated).

44Gahr v. Smith, 42 N.E.2d 203, 204 (Ohio Ct. App. 1942); Hamilton v. Temple, 19

N.E.2d 650, 651 (Ohio Ct. App. 1938).

45709 N.E.2d at 1148.

46Id. The ordinance in question apparently required billiard room operators to deny

entrance to juveniles. Five complaints were filed against the defendant for violating this

ordinance.

47Id. at 1151.

48Id. at 1150-51.

49Id. See also State ex rel. Hansen v. Reed, 589 N.E.2d 1324, 1327 (Ohio 1992).



here.50 However, I can make several general observations from my own experiences.

First, when a case involves various parties with numerous claims, cross-claims and

counterclaims, the parties and the courts occasionally lose track of all the claims

involved and will let an errant claim get by unresolved. This leaves the action

undetermined and, in the absence of Ohio R. Civ. P. 54(B) language, will result in

dismissal of the appeal.51 Second, orders directed at strictly procedural matters, are

almost never final unless they involve termination of the case.52 For instance, orders

overruling motions to dismiss,53 orders denying summary judgment motions,54 orders

regarding requests for change of venue,55 orders entered in reference to motions for

continuance,56 orders granting or denying motions in limine57 and orders rejecting a

magistrate’s decision and setting a matter for trial de novo are not final orders.58

Discovery rulings made in actions that existed at common law, and were not

specially created by statute, are not final appealable orders59 unless they could be

characterized as judgments that grant or deny provisional remedies.60

50A rather extensive list of such orders can be found in WHITESIDE, supra note 26, at 59-

76.

51See, e.g., Karr v. JLH of Athens, Inc., No. 99CA57, 2000 Ohio App. LEXIS 5735 (Ohio

Ct. App. Dec. 4, 2000).

52See Drayer v. Williams, 143 N.E.2d 137, 138 (Ohio Ct. App. 1957) (orders overruling or

sustaining motions directed to pleadings are not final orders unless they are accompanied by a

dismissal and termination of proceedings in the trial court). See also Colonial Mortgage Serv.

Co. v. Habitat Assocs., No. 76AP-597, 1976 Ohio App. LEXIS 8251 (Ohio Ct. App. Dec. 28,

1976), (procedural orders regarding time, place and manner of trial are not final and

appealable). However, the denial of a motion to intervene as a party defendant (while

arguably procedural) has been held to be a final order. Widder & Widder v. Kutnick, 681

N.E.2d 977 (Ohio Ct. App. 1996) (non-special proceeding). This is intuitively logical though

because such order determines the action and prevents any further judgment with respect to

the would be intervenor.

53See, e.g., Hughes v. Zordich, No. 99CA167, 2001 Ohio App. LEXIS 1913 (Ohio Ct.

App. Apr. 25, 2001); Shane v. Tracey, No. 77025, 2000 Ohio Ct. App. LEXIS 3844 (Ohio Ct.

App. Aug. 24, 2000).

54Stevens v. Ackman, 743 N.E.2d 901 (Ohio 2001); Celebrezze v. Netzley, 554 N.E.2d

1292, 1293 (Ohio 1990).

55See, e.g., Mansfield Family Rest. v. CGS Worldwide, Inc., No. 00-CA-3, 2000 Ohio

App. LEXIS 6187 (Ohio Ct. App. Dec. 28, 2000); Wilson v. Kemp, No. 99CA2667, 1999

Ohio App. LEXIS 5753 (Ohio Ct. App. Nov. 24, 1999).

56See, e.g., Miller v. Bauer, 746 N.E.2d 217, 221 (Ohio Ct. App. 2000); State v. Yee, 563

N.E.2d 54, 56 (Ohio Ct. App. 1989).

57Covington v. Sawyer, 458 N.E.2d 465, 469-470 (Ohio Ct. App. 1983); In re Isaacs, No.

18104, 2000 Ohio App. LEXIS 3491 (Ohio Ct. App. July. 31, 2000).

58AAA Pipe Cleaning Corp. v. Arrow Unif. Rental, Inc., No. 74215, 1999 Ohio App.

LEXIS 3381 (Ohio Ct. App. July 22, 1999).

59Walters v. The Enrichment Ctr. of Wishing Well, Inc., 676 N.E.2d at 893 (Ohio 1997);

State ex rel. Steckman v. Jackson, 639 N.E.2d 83, at paragraph seven of the syllabus (Ohio

1994).

60See infra notes 219-261 and accompanying text.



Appellate courts frequently encounter problems with judgments that leave one or

more issues in a claim unresolved. For example, judgments that determine liability

but defer the issue of damages for later adjudication do not determine the entire

action and thus are neither final nor appealable.61 Likewise, judgments awarding

attorney fees, but deferring the amount of those fees for later adjudication are not

final62 nor are judgments that fail to dispose of a request for prejudgment interest.63

There has also been confusion over the distinction between decisions and final

judgment entries. A judgment includes a decree and any order from which an appeal

lies.64 Judgments must terminate the entire action, and determine the rights of the

parties, leaving nothing for further adjudication.65 A document in the nature of a

decision or opinion which calls for the preparation of a journal entry consistent with

the court’s reasoning is not a final order.66 Only after there is an entry fully

adjudicating the rights of the parties is there an order, which can be appealed.

Practitioners also need to be aware that interplay with other procedural rules may

affect the finality of the judgments they seek to appeal. For instance, an order that

merely adopts a magistrate’s recommended decision pursuant to Ohio R. Civ. P.

53(E)(4), but does not specify the relief being granted to the parties, is not

appealable.67 Moreover, otherwise final judgments are not appealable if there are

unresolved Ohio R. Civ. P. 59 or Ohio R. Crim. P. 33 motions for new trial68 or

unanswered Ohio R. Civ. P. 52 requests for findings of fact and conclusions of law.69

61See, e.g., State ex rel. White v. Cuyahoga Metro. Hous. Auth., 684 N.E.2d 72, 74 (Ohio

1997); see also GTE North, Inc. v. Carr, 618 N.E.2d 249, 250, n.1 (Ohio Ct. App. 1993).

62See, e.g., Ft. Frye Teachers Ass’n v. Ft. Frye Local Sch. Dist. Bd. of Educ., 623 N.E.2d

232, 234 (Ohio Ct. App. 1993); Cole v. Cole, No. 93CA2146, 1992 Ohio App. LEXIS 5375

(Ohio Ct. App. Nov. 8, 1993); Pickens v. Pickens, No. 459, 1992 Ohio App. LEXIS 4450

(Ohio Ct. App. Aug. 27, 1992).

63Timmotors, Inc. v. Lima Ford, Inc., No. 1-2000-11, 2001 Ohio App. LEXIS 3620 (Ohio

Ct. App. Aug. 16, 2001) (decision on cross-appeal); Grubbs v. Brown, No. CA8471, 1991

Ohio App. LEXIS 3178 (Ohio Ct. App. Jun. 24, 1991).

64Ohio R. Civ. P. 54(A).

652 KLEIN & DARLING, CIVIL PRACTICE § 54-1 (1997) (a civil action is terminated by the

court judgment); 63 OHIO JUR. 3D Judgments § 376 (2002) (a final judgment inter alia

determines the rights of the parties).

66Millies v. Millies, 350 N.E.2d 675, 667 (Ohio 1976); see also Prod. Credit Assn v.

Hedges, 621 N.E.2d 1360, 1362 n.2 (Ohio Ct. App. 1993); Minix v. Collier, No. 98CA2619,

1999 Ohio App. LEXIS 3405 (Ohio Ct. App. July 16, 1999).

67Harkai v. Scherba Indus., 736 N.E.2d 101, 108 (Ohio Ct. App. 2000); Wellborn v. K-

Beck Furn. Mart, Inc., 375 N.E.2d 61, 62 (Ohio Ct. App. 1977).

68State v. Untied, Muskingum App. No. CT2001-19 (Apr. 17, 2002) (unreported);

Gallucci v. Freshour, No. 99CA22, 2000 Ohio App. LEXIS 3002 (Ohio Ct. App. June 22,

2000); Columbus v. Triplett,. No. 99AP-368, 1999 Ohio App. LEXIS 5983 (Ohio Ct. App.

Dec. 14, 1999); State v. Rhoden, No. 95CA562, 1996 Ohio App. LEXIS 3574 (Ohio Ct. App.

Aug. 19, 1996).

69Caudill v. Caudill, 594 N.E.2d 1096, 1097 (Ohio Ct. App. 1991); Caruthers v. Caruthers

No. 00CA09, 2001 Ohio App. LEXIS 402 (Ohio Ct. App. Jan. 25, 2001). Similarly, in

proceedings on petitions for postconviction relief pursuant to OHIO REV. CODE § 2953.21,



Compliance with the technical requirements of these rules is necessary to determine

the action and make the judgment final and appealable.

Though less common than in civil proceedings, these jurisdictional deficiencies

occur in criminal cases as well. Practitioners should note that a final order in a

criminal prosecution is one that contains a sentence amounting to a disposition of the

entire case.70 Thus, an appeal from the jury’s verdict, or the court’s judgment of

conviction, before sentence is imposed, is premature.71 From the defense standpoint,

virtually no order other than the final judgment of conviction and sentence is ever

appealable. Examples of cases dismissed for lack of a final order include appeals

from judgments denying motions to dismiss on grounds of double jeopardy,72

judgments denying motions to suppress evidence73 and judgments denying motions

to dismiss for speedy trial violations.74 None of these rulings determine the action

and prevent a judgment. From the prosecution standpoint, interlocutory appeals can

be taken from orders that grant motions to suppress evidence or dismiss part, or all,

of an indictment or complaint.75 When appealing an order suppressing evidence, the

State must certify that its appeal is not taken for the purpose of delay and that the

trial court’s ruling rendered its proof with respect to the pending charge so weak as

to destroy any reasonable probability of effective prosecution.76 The State also has

other limited rights of appeal regarding ancillary criminal matters.77 Whether the

order being appealed originates in a criminal or civil context, however, practitioners

should keep in mind that appeals under section 2505.02(B)(1) must generally wait

judgments dismissing the petition that are not accompanied by findings of fact and

conclusions of law are not final and appealable. State ex rel. Baker v. Common Pleas Court,

No. 830, 2000 Ohio App. LEXIS 811 (Ohio Ct. App. Feb. 17, 2000); State v. Girts, No.

73749, 1998 Ohio App. LEXIS 5934 (Ohio Ct. App. Dec. 10, 1998); State v. Smith, No.

97CA807, 1998 Ohio App. LEXIS 874 (Ohio Ct. App. Mar. 3, 1998).

70See State v. Hunt, 351 N.E.2d 106, 109 (Ohio 1976); State v. Chamberlain, 202 N.E.2d

695, 696 (Ohio 1964).

71See, e.g., Cuyahoga Falls v. Andy, No. 17529, 1996 Ohio App. LEXIS 1149 (Ohio Ct.

App. March 27, 1996); Coshocton v. James, No. 90-CA-6, 1990 Ohio App. LEXIS 4823

(Ohio Ct. App. Oct. 29, 1990).

72State v. Prokos, No. 00CA02, 2000 Ohio App. LEXIS 2387 (Ohio Ct. App. May 31,

2000); State v. Leonhardt, Nos. C-950193, C-950194, C-950258 & C-950259, 1996 Ohio

App. LEXIS 4165 (Ohio Ct. App. Sep. 25, 1996).

73State v. Prieto, No. 99CA263 & 99CA264, 1999 Ohio App. LEXIS 4857 (Ohio Ct. App.

Oct. 14, 1999); see also infra notes 261-265 and accompanying text.

74Middletown v. Jackson, 457 N.E.2d 898, 899 (Ohio Ct. App. 1983); State v. Serednesky,

No. 99CA7, 1999 Ohio App. LEXIS 5812 (Ohio Ct. App. Nov. 22, 1999); State v. Edwards,

No. CA89-07-103, 1989 Ohio App. LEXIS 3582 (Ohio Ct. App. Sep. 18, 1989).

75OHIO REV. CODE ANN. § 2945.67(A) (Anderson 2002).

76Ohio R. Crim. P. 12(K)(1)&(2). This certification, as well as the notice of appeal, must

be filed within seven days of the entry suppressing or excluding evidence. Id.

77See OHIO REV. CODE § 2945.67(A) (state may appeal as of right an order granting return

of seized property or post conviction relief and may seek leave to appeal any other decision of

the trial court except for the final verdict); OHIO REV. CODE § 2953.08(B)(1)-(3) (state may

appeal sentences based on state felony sentencing guidelines under certain circumstances).



until the entire case has been resolved and the matter formally terminated before the

order can be reviewed.

IV. ORDERS AFFECTING A SUBSTANTIAL RIGHT MADE IN A SPECIAL PROCEEDING

The second category of final orders under section 2505.02 are those that affect a

substantial right made in a “special proceeding.”78 This category has proven the

most conceptually difficult for the bench and bar over the years and the analytical

process for determining whether an action is a special proceeding has been likened

by one writer to “the old medieval question of how many angels can sit on the head

of a pin.”79 For many years, section 2505.02 never defined a “special proceeding” or

delineated the sorts of actions that fell within that rubric. Crafting a workable

definition fell to the judiciary, but implementation of differing standards over time,

as well as inconsistent application of those standards, led to considerable confusion

and a lack of predictability. Finally, in 1998, the Ohio General Assembly stepped in

and defined a special proceeding as “an action or proceeding that is specially created

by statute and that prior to 1853 was not denoted as an action at law or a suit in

equity.”80 This definition essentially codified the culmination of special proceeding

jurisprudence as it evolved over the last century and a half. To better understand the

current definition, practitioners and judges must understand the previous definitions

and the manner in which they were applied. That history is best understood in

reference to the seminal case of Amato v. General Motors Corp.81 Though Amato is

no longer the applicable standard, case law interpreting the concept of a special

proceeding is oftentimes thought of as being Pre-Amato, Amato or Post-Amato.

Each of these periods is discussed as follows.

78OHIO REV. CODE § 2505.02(B)(2). The same principles concerning “substantial rights”

that applied with respect to the first category of final orders, apply here as well. See supra

notes 24-32 and accompanying text. Moreover, this category of final orders also includes

those rulings that affect a substantial right and are made upon a summary application in an

action after judgment. There is little case law discussing this variety of proceeding. The term

summary application is not specifically defined by statute but seems to include those

situations that arise after judgment and do not involve lengthy trial court proceedings. State v.

Wilkinson, Montgomery App. No. 18286, (Ohio Ct. App. Sept. 25, 2000) (unreported); State

v. Kelly, No. 18170, 2000 Ohio App. LEXIS 5074 (Ohio Ct. App. Sept. 25, 2000). Thus, the

denial of a post-judgment motion to take a polygraph exam is an order made upon summary

application, see State v. Branham, No. H-95-066, 1995 Ohio App. LEXIS 5247 (Ohio Ct.

App. Nov. 27, 1995), as is a ruling on a post-judgment motion for sanctions pursuant to OHIO

REV. CODE § 2323.51, see Victoria’s Garden v. Sheehy, No. 93AP-404, 1993 Ohio App.

LEXIS 3759 (Ohio Ct. App. Jul. 27, 1993), and an action seeking an order for judgment

debtor exam. See Hessell v. Polen, No. 9920, 1986 Ohio App. LEXIS 9731 (Ohio Ct. App.

Nov. 26, 1986). The Court in Kelly and Wilkinson, both held that rulings on motions for shock

probation were orders entered in a summary application after judgment and were thus final

and appealable. Those holdings are no longer good law given the decision of the Ohio

Supreme Court in Coffman, 742 N.E.2d at 644. See supra notes 27-28 and accompanying text.

79Michael J. Buenger, Ohio Appellate Practice Before and After Polikoff: Are Things

Really all That Much Clearer?, 28 AKRON L. REV. 11 (1994).

80OHIO REV. CODE § 2505.02(A)(2).

81423 N.E.2d 452 (Ohio 1981).



A. The Pre-Amato Classification of a Special Proceeding

The Ohio Supreme Court first spoke to the issue of a “special proceeding” more

than a century ago in Watson & Co. v. Sullivan,82 which dealt with a lawsuit brought

to recover money. Contemporaneously with its complaint, the plaintiff sought and

obtained an order of attachment against the defendant’s property. Defendant moved

the common pleas court to discharge the attachment and his motion was granted.

Plaintiff appealed that ruling but the defendant argued that an appeal could not be

taken until after disposition of the whole case. The Ohio Supreme Court disagreed

and found that attachment was a “special proceeding”83 and that the order dissolving

that attachment affected a substantial right84 thereby making the order final and

appealable. In defining a “special proceeding,” the Court turned to recent legislation

establishing a code of civil procedure and reasoned as follows:

The 3d section of the code abolishes the distinction between actions at

law and suits in chancery, and substitutes in their place but one form of

action, called a civil action. The commissioners, in their report to the

Legislature upon this section, say: “A civil action, under this code, will

comprehend every proceeding in court heretofore instituted by any and all

the forms hereby abolished. Every other proceeding will be something

else than an action; say, ‘a special proceeding.” The Legislature seems to

regard all proceedings, not theretofore obtained by suit or action, as a

special proceeding, or special statutory remedy; and it would seem to

follow, that a provision in the code providing a proceeding, not by action,

would be a special proceeding.85

The Court thus adopted what was essentially an “historical basis test.” This test

asked whether the proceeding in question existed at either common law or equity

prior to 1853. If the answer to that question was yes, then the proceeding was an

ordinary civil action and an interlocutory order entered therein was not final.

However, if the answer was no, then the action was a “special proceeding” and, so

long as the order entered therein affected a substantial right, it was final and

appealable.

The problem with this test was that it was never strictly or consistently applied.

Even in Watson & Co., the Supreme Court deviated from its own standard. The real

claim in that case was to recover money, an action that has long existed at common

825 Ohio St. 42 (Ohio 1855).

83Id. at 45.

84Id. at 43.

85Id. at 44. Effective June 1, 1853, Ohio abolished the distinction between actions at law

and suits in equity and established in their place a single form of action called a “civil action.”

See 2 REVISED STATUTES OF OHIO § 3 (Swann & Critchfield 1860). Civil actions thereafter

included all proceedings previously regarded as actions at law or suits in equity. See 1 OHIO

JUR. 3D Actions § 5 (1998). This classification scheme survives to this day in the guise of

Ohio R. Civ. P. 2, which states that there shall be only one form of action and that is a “civil

action.”



law.86 Attachment is only an ancillary remedy to achieve that end87 and, generally,

has no status separate and apart from a civil action to recover money.88 However, the

Supreme Court treated the attachment as an entirely separate proceeding and applied

the test to that remedy rather than the underlying action to recover money.89 Further,

rather than inquire whether attachment had existed at common law or equity prior to

1853, the Court simply opined that it was a special proceeding.90

This sort of inconsistent rhetoric and incongruent application of the historical

basis test bred confusion and conflicting results over time. On the one hand, the

Supreme Court defined a “special proceeding” in contradistinction to a civil action

(thus reinforcing that the test was to determine whether the action existed at law or in

equity prior to 1853)91 but then, on the other hand, would remark that the question of

whether an order is reviewable should be answered by looking at its substance and

effect without regard to whether it was of a legal or equitable nature.92 In many

instances, the Court applied no test at all and simply ruled ipso facto that an action

was a special proceeding.93 Further, as in Watson & Co., the Court oftentimes

86The factual recitation in Watson & Co. is a bit sparse and the Supreme Court never

clearly stated the nature of the claim except to say that it was “an action” to “recover a large

sum of money.” 5 Ohio St. at 42. However, the fact that plaintiff sought attachment would

suggest that this was a claim on a debt. See 24 OHIO JUR. 3D Creditors’ Rights and Remedies

§ 254 (1998) (attachment is a remedy for the collection of an ordinary debt). A “debt” is a

sum of money due by contract and an action on a debt was a common law form of action to

recover a sum certain of money. See 13 OHIO JUR. Debt § 2 (1930).

87See Endel v. Leibrock, 33 Ohio St. 254, 267 (Ohio 1877) (attachment proceeding is

ancillary); Seibert v. Switzer, 35 Ohio St. 661, at paragraph one of the syllabus (Ohio 1880)

(attachment is an auxiliary proceeding).

88Wellborn v. K-Beck Furn. Mart, Inc., 375 N.E.2d 61, 63 (Ohio 1977).

895 Ohio St. at 45. Attachment proceedings are either in personam or in rem. 24 OHIO JUR.

3D Creditors’ Rights and Remedies § 257 (1998). When the principal action is in personam,

and a judgment can be rendered against a person, then the proceeding is not an independent

action. Id. By contrast, when the principal action is in rem, and is aimed at specific property,

the attachment is an action in and of itself. Id. Again, the opinion in Watson & Co. is a little

vague as to whether the principal action was in rem or in personam. However, the decision

states that the action was commenced “to recover a large sum of money against Sullivan.” 5

Ohio St. at 43. This suggest that the proceeding was in personam. Accordingly, attachment

should have been treated as an ancillary remedy to the principal action to recover debt rather

than as an independent proceeding.

905 Ohio St. at 45. The court was correct in its finding. Attachment is a statutory

proceeding, see Carper v. Richards, 13 Ohio St. 219, 222 (Ohio 1862), and is in derogation of

the common law. Smith v. Buck, 162 N.E. 382, 384 (Ohio 1928). Nevertheless, the Court

reached that conclusion without engaging in any analysis.

91See, e.g., Young v. Shallenberger, 41 N.E. 518, 521 (Ohio 1895); Maginnis v. Schwab,

24 Ohio St. 336, at paragraph one of the syllabus (Ohio 1873); Taylor v. Fitch, 12 Ohio St.

169, at syllabus (Ohio 1861).

92See, e.g., Webb v. Stasel, 88 N.E. 143, 144 (Ohio 1909); Cincinnati, Sandusky &

Cleveland RR. Co. v. Sloan, 31 Ohio St. 1, at syllabus (Ohio 1876).

93See, e.g., Cincinnati Gas & Elec. Co. v. PUCO, 65 N.E.2d 68, 69 (Ohio 1946);

Cleveland, Columbus & Cincinnati Highway, Inc. v. PUCO, 49 N.E.2d 759, 760 (Ohio 1943)



focused its attention on the ancillary proceeding rather than the underlying action

itself.94

This confusion in early special proceeding jurisprudence is best illustrated by the

Court’s treatment of probate cases. The Supreme Court held in Missionary Society

of M.E. Church v. Ely that an application to admit a will to probate is a “special

proceeding” so that a judgment denying that application was a final appealable

order.95 In reaching that conclusion, however, the Court applied a somewhat

different definition of special proceeding:

But we suppose that any ordinary proceedings in a court of justice, by

which a party prosecutes another for the enforcement or protection of a

right, the redress or prevention of a wrong, or the punishment of a public

offense, involving the process and pleadings, and ending in a judgment, is

an action, while every proceeding other than an action, where a remedy is

sought by application to a court for a judgment or an order is a special

proceeding.96

At issue in this case was a statute allowing anyone receiving a devise or bequest by

will the right to present that will for probate. The Court reasoned that the statute

conferred a legal right and authorized an application to a court for its enforcement

and, thus, the proceeding was “of a judicial nature” and belonged to that class of

special proceedings.97

However, in Hollrah v. Lasance, the Court held that an order admitting a will to

probate was not a final appealable order.98 No discussion of special proceedings was

even made in that case but the Court distinguished its holding in Missionary Society

of M.E. Church by noting that an order admitting a will to probate could still be

challenged by a will contest whereas an order excluding a will from probate could

not.99 The Court reaffirmed that an order admitting a will to probate was not

reviewable in the case of In re Estate of Frey.100 Again, though, there was no

(PUCO proceedings are special proceedings); Pittsburgh, Cleveland & Toledo RR. Co. v. Tod,

74 N.E. 172, 174 (Ohio 1905); In re Appropriation for Highway Purposes, 203 N.E.2d 247,

248 (Ohio 1964); In re Appropriation of Easements for Highway Purposes, 175 N.E.2d 512,

513 (Ohio 1961) (appropriation actions are special proceedings).

94See, e.g., Jones v. First Nat’l Bank of Bellaire, 176 N.E. 567, 569 (Ohio 1931)

(injunction not a special proceeding); Burke v. Ry. Co., 17 N.E. 557 (Ohio 1888) (order

overruling motion to dissolve injunction was made in a special proceeding though the nature

of the action is not even specified); Cincinnati, Sandusky & Cleveland RR. Co., 31 Ohio St. 1

at syllabus (Ohio 1876); Forrest City Inv. Co. v. Haas, 143 N.E. 549, at syllabus (Ohio 1924)

(appointment of a receiver is an order made in a special proceeding)

9556 Ohio St. 405, at syllabus (Ohio 1897)

96Id. at 407.

97Id. at 408.

9863 Ohio St. 58, at syllabus (Ohio 1900).

99Id. at 65. It is tempting to try and reconcile this case as being decided on the basis of

whether or not the order affected a substantial right. However, the Court’s opinion gives little

analysis of either concept.

10040 N.E.2d 145, at syllabus (Ohio 1942).



discussion of whether this was a special proceeding. The Court seemed to focus

instead on the first category of final orders noting that the order did not determine the

rights of all interested parties until termination of proceedings.101 Until such rights

were determined, this was only a “conditional order” because, otherwise, there

would be “two final orders.”102 A somewhat different question was presented in the

case of In re Estate of Wykoff103 wherein the Probate Court allowed presentment of a

late claim under then existing section 2217.07 and the administrator appealed. The

Court of Appeals sustained a motion to dismiss for lack of a final order but the

Supreme Court reversed finding that the order affected a substantial right and was

entered in a special proceeding. In reaching this latter conclusion, the Court returned

to the standard enunciated a century before in Watson & Co:

We think it can accurately be said that the term, “civil action,” as used in

our statutes embraces those actions which prior to the adoption of the

Code of Civil Procedure in 1853 abolishing the distinction between

actions at law and suits in equity, were denoted as actions at law or suits

in equity; and that other court proceedings of a civil nature come,

generally at least, within the classification of special proceedings.104

The Court found that “the proceeding provided by section 2117.07, Revised Code”

represented an independent judicial inquiry and was thus a special proceeding.105

The problems with these cases were two-fold. First, the Court never consistently

applied its historical basis test for determining whether an action was a “special

proceeding.” Indeed, in some instances, the Court never applied the test at all. Even

in Wykoff, where reference was made to the standard first announced in Watson &

Co., the Court never delved into whether probate actions in general, or “section

2117.07 proceedings” in particular, existed at common law or equity prior to 1853.

Instead, the Court determined that this was a special proceeding because it was made

“in connection with which a petition and no other pleadings are required and wherein

there is notice only, without service of summons and which represents essentially an

independent judicial inquiry.”106

The second problem with these cases is that the Court continued to direct its

inquiry to ancillary matters rather than the underlying action. Probate is the process

by which a will is proved to be valid, or invalid, and includes all matters and

proceedings pertaining to administration of estates.107 Rather than focus on this

process in its entirety, the Court focused its attention on each individual and ancillary

proceeding (e.g. application to admit will to probate, application to present a late

claim, etc.). What the Court failed to realize is that probate, like most court actions,

involves many ancillary proceedings. Motions will be filed, discovery will be

101Id. at 148.

102Id.

103142 N.E.2d 660 (Ohio 1957).

104Id. at 663.

105Id. at 664.

106Id.

107BLACK’S LAW DICTIONARY 1081 (5th ed. 1979).



conducted and the trial courts will enter innumerable orders throughout the course of

an action. Had the Ohio Supreme Court in these cases focused its attention on

determining whether probate cases as a whole were special proceedings, rather than

each individual application within that action, then the Court might have developed a

consistent body of case law over the years.108 Instead, varying definitions of what

was or was not a special proceeding, and focus on ancillary matters rather than the

underlying action, led to confusion and inconsistency.

B. Amato v. General Motors

The confusing state of “special proceeding” jurisprudence begged for some

degree of clarification and the Ohio Supreme Court took that opportunity in Amato v.

General Motors Corp.109 However, rather than refine or clarify the test for

determining whether an action was a “special proceeding,” or espousing a stricter

application of the test it had already announced, the Court threw out its old standard

and adopted a new one altogether.

Paul Amato was a consumer who bought an Oldsmobile that had been secretly

equipped with a Chevrolet engine. Upon discovering the switched engine, he filed

suit against General Motors asserting claims for breach of contract, fraud and

violation of the Ohio Consumer Sales Practices Act. Amato sought, and was

granted, permission under Ohio R. Civ. P. 23, to represent a class of plaintiffs who

bought similar cars. General Motors appealed the class certification, but the case

was dismissed for lack of a final appealable order. The Ohio Supreme Court

reversed. In so doing, the Court acknowledged that the judiciary had been “less than

precise” in defining a “special proceeding.”110 The Court nevertheless noted that

certain principles could be gleaned from past cases. First and foremost was that the

Court had been “most reluctant” to allow interlocutory rulings during the pendency

of litigation under the guise that such rulings were made in a special proceeding.111

Second, from the small class of rulings deemed to have been reviewable under this

108To be fair, the issue of whether the entire probate process is a special proceeding has

never been definitively stated and defies easy explanation. Modern probate proceedings can

trace their lineage back to English ecclesiastical and chancery courts. 1 MERRICK-RIPPNER,

PROBATE LAW §1.1 (1997). By the same token, however, provision for descent and

distribution of property has been provided for by statute in Ohio as far back as the Northwest

Ordinance. Id. § 1.4 n.2. It has also been said that the application to make probate of a will

belongs neither to the common law nor equity jurisdiction conferred upon common pleas

courts. See Hunter’s Will, 6 Ohio 499, 501 (Ohio 1834). The Ohio Supreme Court has also

said that the right to transmit or inherit property is not an inherent or natural right but is purely

a statutory right and subject to legislative control and restriction. Ostrander v. Preece, 196

N.E. 670, 673 (Ohio 1935). This would suggest that, under the Supreme Court’s definition of

a special proceeding in Watson & Co. and In re Estate of Wykoff, probate proceedings in

general are “special proceedings.” Nevertheless, this issue continues to cause disagreement

among the courts. See infra note 154 and accompanying text.

109423 N.E.2d 452 (Ohio 1981).

110Id. 455. As demonstrated by the cases previously discussed herein, this was an

understatement of monolithic proportion. It is also interesting to note that, nowhere in its

opinion, did the Supreme Court ever recognize its previous standard of looking to whether the

proceeding had existed as an action at law or equity prior to 1853.

111Id.



category of final orders, a “prime determinant” of whether a particular order was one

made in a “special proceeding” was “the practicability of appeal after judgment.”112

The Court thus adopted a “balancing test” for determining whether an order was

made in a special proceeding:

This test weighs the harm to the ‘prompt and orderly disposition of

litigation,’ and the consequent waste of judicial resources, resulting from

the allowance of an appeal, with the need for immediate review because

appeal after final judgment is not practical.113

Applying that standard to the facts at hand, the Court concluded that the balance

tipped in favor of allowing immediate review.114 The Court thus held that an order

allowing an action to continue as a class action was made in a special proceeding and

was a final appealable order.115

Aside from the novelty of this new balancing test, there were several noteworthy

analytical anomalies in Amato. First, the Court need never have reached the whole

“special proceeding” issue at all. The Court had already determined that an order

denying class action status was a final appealable order under the first category of

section 2505.02 because it effectively determined the action with respect to the

proposed plaintiff class.116 The Court could have simply extended that holding and

ruled that an order allowing a class action to be maintained also determined the

action.117 More importantly, however, the Court in Amato was never entirely clear as

to whether it was treating the class certification order or the underlying action as the

“special proceeding.” It appears from the opinion that the Court was treating the

ancillary order granting class certification as the special proceeding.118 If that was

the case, then the Court clearly erred. A class action is not a proceeding in and of

112Id. at 456 (emphasis added).

113Id.

114Amato, 423 N.E.2d at 456. The Court reasoned that class actions impose enormous

burdens on courts as well as litigants and, thus, allowing an immediate appeal of a class

certification that might have been improper may actually conserve judicial resources.

Furthermore, because the costs of litigation and potential liability were so high for defendants

in a class action, the Court believed that defendants would be forced to settle the case thereby

foreclosing any future appellate review as to the propriety of the class certification. Id.

115Id. at the syllabus.

116Roemisch v. Mutual of Omaha Ins. Co., 314 N.E.2d 386, at the syllabus (Ohio 1974).

See infra notes 268-271 and accompanying text.

117The Court’s reasoning that the litigation costs and potential liability of class actions

would force companies to settle rather than wait to appeal certification at the end of trial,

could just as easily have been used to conclude that the trial court’s decision effectively

determined the action. Amato, 423 N.E.2d at 456. Oddly enough, the Court acknowledged

that it could have decided Amato in this manner, but declined to do so. Id. at 455 n.9.

118The Court stated that “an order certifying that an action may be maintained as a class

action is made in a special proceeding and, as such, it is a final, appealable order.” Amato,

423 N.E.2d at 456.



itself but rather a procedural device by which to maintain some other action.119

However, if the Court was looking to the underlying action itself, then it failed to

explain how the plaintiff’s claims for breach of contract and common law fraud were

“special proceedings.”

If anything, the Amato balancing test proved less workable than the pre-Amato

historical basis test. The determination as to whether a proceeding had existed at

common law or equity prior to 1853 was, at least theoretically, an objective one. An

action either existed at common law or equity or it did not. However, the balancing

test was entirely subjective. The Court was oftentimes divided on whether the test

weighed in favor of immediate review or in favor of review on appeal after final

judgment.120 The balancing test was also frequently criticized121 and, on occasion,

even ignored altogether.122

One of the more significant areas of the law affected by Amato was the issue of

whether discovery orders were immediately appealable. Discovery orders had long

119Woods v. Oak Hill Cmty. Med. Ctr., Inc., 730 N.E.2d 1037, 1046 (Ohio Ct. App. 1999);

Turoff v. Halle Bros. Co., Cuyahoga App. No. 34413 (Ohio Ct. App. Apr. 8, 1976)

(unreported). The Court acknowledged that distinction in its opinion but appears to have

treated the pleading mechanism as a separate cause of action anyway. See Amato, 423 N.E.2d

at 454

120Compare State, ex rel. Celebrezze v. K & S Circuits, Inc., 453 N.E.2d 653, at the

syllabus (Ohio 1983) (order denying jury trial in water pollution control case not a final order),

with id. at 655 (Holmes, J., dissenting) (would allow appeal). Compare Columbus v. Adams,

461 N.E.2d 887, at the syllabus (Ohio 1984) (pre-trial suspension of an operator’s license of

one accused of violation of § 4511.19 or municipal ordinance related to operation of a motor

vehicle while under influence of alcohol not a final order), with id. at 891 (Sweeney, W.

Brown & C. Brown, JJ., dissenting) (would allow appeal). Compare Tilberry v. Body, 493

N.E.2d 954, 956 (Ohio 1986) (judicial dissolution of partnership is a special proceeding and

immediate appeal should be allowed), with id. at 958 (Douglas & Locher, JJ., dissenting)

(order did not emanate from a special proceeding). Compare General Elec. Supply Co. v.

Warden Elec., Inc., 528 N.E.2d 195, at the syllabus (Ohio 1988) (order denying stay of

litigation pending arbitration and granting motion to dismiss arbitration not a final order), with

id. at 199 (Wright, Sweeney & Brown, JJ., dissenting) (would allow appeal).

121See, e.g., Nelson v. Toledo Oxygen & Equip. Co., 588 N.E.2d 789, 793 (Ohio 1992)

(Douglas & Sweeney, JJ, concurring) (the Amato balancing test is “malleable, non-definitive

and subjective in nature” and “brings about the necessity of multifarious appeals.”); Stewart v.

Midwestern Indemn. Co., 543 N.E.2d 1200, 1204 (Ohio 1989) (Douglas, J., dissenting) (the

term “special proceeding” has nothing to do with the test set forth in Amato. The need for

immediate review, waste of judicial resources or orderly disposition of litigation does not

make a proceeding “special.” A special proceeding is an action not recognized at common

law or as part of our standard civil practice but is one that has been brought about by a special

type of action. Examples would include forcible entry and detainer, declaratory judgment,

appropriation and arbitration.)

122See, e.g., General Acc. Ins. Co. v. Ins. Co. of N. Am., 540 N.E.2d 266, at the syllabus

(Ohio 1989) (Declaratory Judgment is a “special proceeding”). The Court reached this

conclusion by reasoning that declaratory judgment actions were a special remedy not available

at common law or at equity. Because they were unknown at common law, jurisdiction to hear

such cases were dependent on statutory authorization. Id. at 271. This reasoning was

reminiscent of the Pre-Amato historical basis test. No mention was made of the Amato

balancing test.



been considered interlocutory and not subject to immediate appeal.123 After Amato,

however, the Court carved out several exceptions to that longstanding rule. In State

v. Port Clinton Fisheries, Inc. the Court held that an order compelling disclosure of

the identity of a confidential informant was a final appealable order.124 The Court

reasoned that the balancing test weighed in favor of an immediate appeal because,

once the informant’s identity was revealed, no appeal could remedy the harm of that

disclosure.125 Similarly, in Humphrey v. Riverside Methodist Hosp., it was held that

an order compelling disclosure of names of patients who had contracted

Legionnaire’s Disease while at a hospital was a final order.126 The Court reasoned

that the need for immediate appellate review so as to protect patient privilege

outweighed any potential disruption to the proceeding or waste of judicial

resources.127 Retreating from these positions a bit, the Court held in Nelson v. Toledo

Oxygen & Equip. Co. that a discovery order both compelling the production of

documents and overruling a claim that the materials sought were exempt as work

product was not a final order.128 This time, the Court held that the balancing test

weighed in favor of review after final judgment in the case.129

Despite its flaws, the balancing test was not without some benefit.130 The basic

theme of Amato and its progeny was that a party should be granted an immediate

right of review where harm resulting to that party was extreme and irreparable.131

Thus, in Doe v. Univ. of Cincinnati, an immediate appeal was allowed of an order

compelling disclosure of the identity of a blood donor infected with the HIV virus.132

It was aptly noted by the Court of Appeals that, absent immediate review, the

donor’s rights of privacy and confidentiality in medical diagnosis would be

compromised and that this was a wrong which could not be later corrected on

subsequent review.133 This result seems intuitively reasonable and just. Even if the

equities weighed in favor of disclosing the donor’s identity, the donor’s rights to

123Kennedy v. Chalfin, 310 N.E.2d 233, 235 (Ohio 1974); In re Coastal States Petroleum,

290 N.E.2d 844, 847 (Ohio 1972); Klein v. Bendix-Westinghouse Auto. Brake Co., 234

N.E.2d 587, 589 (Ohio 1968).

124465 N.E.2d 865, at the syllabus (Ohio 1984).

125Id. at 867.

126488 N.E.2d 877, 879 (Ohio 1986).

127Id. at 879. Several of the justices disagreed noting that this was an ordinary civil action

and was not a special proceeding. Id. at 880 (Douglas & Sweeney, JJ., dissenting).


129Id. at 791.

130Buenger, supra note 79, at 15 (the advantage of the Amato test was in its flexibility).

131Hollis v. Finger, 590 N.E.2d 784, 788 (Ohio Ct. App. 1990); Galbreath v. Galbreath,

No. 89AP-103, 1989 WL 65389 (Ohio Ct. App. Jun. 13, 1989). This would essentially

become the underlying premise for allowing appeals from orders that grant or deny

provisional remedies under OHIO REV. CODE § 2505.02(B)(4). See infra notes 225-228 and

accompanying text.

132538 N.E.2d 419, 422 (Ohio Ct. App. 1988).

133Id.



privacy and confidentiality were substantial enough that immediate review seemed

warranted.134 The price paid to achieve that review, however, was a lack of

consistency and widely divergent opinions as to what sort of discovery orders were

immediately appealable.135

C. Post-Amato

After twelve years of inconsistent application and widely divergent rulings, the

Supreme Court overruled Amato and got rid of the balancing test in Polikoff v.

Adam.136 Harry Polikoff, trustee under the will of Marjorie Polikoff, filed a

shareholder derivative suit against TRW, Inc., its board of directors and officers.

The defendants moved to dismiss arguing that plaintiff failed to make the requisite

demand under Ohio R. Civ. P. 23.1 or plead that such demand would have been

futile.137 Their motion was denied and defendants appealed to the Cuyahoga County

Court of Appeals, which dismissed the case for lack of a final order. An appeal was

then taken to the Ohio Supreme Court, which was asked to decide whether the denial

134The Court ultimately held that the donor’s privacy interests, as well as the interest of

maintaining an adequate volunteer blood supply, outweighed the interests of the plaintiff

seeking disclosure of the information. Id. at 425.

135See, e.g., Cent. Benefits Mut. Ins. Co. v. State Emp. Comp. Bd., 604 N.E.2d 198, 199

(Ohio Ct. App. 1992) (discovery order to obtain allegedly confidential information from

insurance company not made in a special proceeding); Lomano v. Cigna Healthplan of

Columbus, Inc., 613 N.E.2d 1075, 1079 (Ohio Ct. App. 1992) (discovery order seeking

information regarding physician’s application to join organization’s list of member physicians

not a special proceeding); Grant v. Collier, No. 12670, 1992 WL 28161 (Ohio Ct. App. Jan.

23, 1992) (order compelling discovery of medical records made in a special proceeding);

Medley v. Taylor, No. WD-90-16, 1991 WL 59883 (Ohio Ct. App. Apr. 19, 1991) (discovery

order concerning privileged medical records not appealable); Wozniak v. Kombrink, Hamilton

App. No. C-890531 (Ohio Ct. App. Feb. 13, 1991) (unreported) (discovery order concerning

medical histories of non-party patients was made in special proceeding); Aetna Casualty &

Surety Co. v. Desprez, No. 52634, 1987 WL 6120 (Ohio Ct. App. Feb. 5, 1987) (discovery

order mandating production of work product in an insurance company’s claim file arose in a

special proceeding); In re Guardianship of Johnson, 519 N.E.2d 655, 658 (Ohio Ct. App.

1987) (court ordered psychiatric evaluation on a guardianship application occurs in a special

proceeding and is immediately appealable); Foor v. Huntington Nat’l Bank, 499 N.E.2d 1297,

1301 (Ohio Ct. App. 1986) (order overruling motion to quash subpoena duces tecum served on

non-party was a final order); George E. Kuhn & Co. v. Genslinger, No. 12786, 1992 WL

157717 (Ohio Ct. App. July 8, 1992) (order compelling discovery of trade secrets held to be

made in a special proceeding). But see Trionix Research Lab., Inc. v. ADAC Laboratories,

Inc., 15896, 1993 WL 208306 (Ohio Ct. App. June 16, 1993) (discovery order into technology

and trade secrets did not rise to the level of a special proceeding); Klaban v. Chiefs, Inc., No.

CA91-02-022, 1991 WL 99622 (Ohio Ct. App. June 10, 1991) (discovery order regarding

trade secrets and alleged confidential information not made in a special proceeding).

136616 N.E.2d 213 (Ohio 1993).

137Id. at 214. The provisions of Ohio R. Civ. P. 23.1 state, in pertinent part, that the

complaint in a shareholder derivative action must allege with particularity the efforts, if any,

made by the plaintiff to obtain the action he desires from the directors and the reasons for his

failure to obtain the action or for not making the effort.



of the motion to dismiss was an order affecting a substantial right made in a special

proceeding.138

Before addressing this question directly, the Court first paused to consider the

historical development of special proceeding jurisprudence.139 The Court noted that,

as far back as 1855, a special proceeding was defined as one that previously did not

exist as an action at law or a suit in equity prior to the adoption of the Code of Civil

Procedure.140 This standard was carried over into other cases and applied, more or

less consistently, for over a century.141 By contrast, the Amato balancing test was

developed in the early 1980s making it a recent, and arguably ill-advised, deviation

from long established precedent.

The Court then cited several of its own recent cases to illustrate that application

of the balancing test had led to “disparate conclusions.”142 The Court noted that

application of the balancing test varied with each case “proving that it [was]

impossible to ensure the objective application of subjective criteria.”143 Thus, in the

interests of justice, clarity and judicial economy, the Court deemed it time to

abandon the balancing test and return to the historical basis test previously used to

determine whether an action was a special proceeding.144 Amato was therefore

overruled and the Court held that orders entered in actions that were recognized at

common law or in equity, and not specially created by statute, are not orders entered

in special proceedings for purposes of section 2505.02.145 Applying that test to the

facts of the case, the Court noted that shareholder derivative suits had long been

recognized as suits in equity and, thus, did not fall under the definition of a special

proceeding.146 Consequently, the order appealed was not final and the appellate

court’s dismissal for lack of jurisdiction was affirmed.

The Polikoff decision was correct insofar as it abandoned the unwieldy and

subjective Amato balancing test and returned to a more logically consistent and

objective historical basis test. Nevertheless, the decision is problematic for several

reasons. First, as it has periodically done in these cases, the Supreme Court

misdirected its legal analysis to a procedural matter (i.e. the mechanism for

maintaining a shareholder derivative suit) rather than the underlying claim in the

case. Had the Court properly applied the test set out in its syllabus to the underlying

claim, rather than the procedural mechanism affecting how that claim was brought,

138Polikoff, 616 N.E.2d at 217-18.

139Id. at 215-17.

140Id. at 215 (citing Watson & Co., 5 Ohio St. at 42).

141Id. at 216 (citing Missionary Society of M.E. Church, 47 N.E. at 537 and In re Estate of

Wykoff, 142 N.E.2d at 660).

142Id. at 217 (citing inter alia Humphrey, 448 N.E.2d at 877 and Nelson, 588 N.E.2d at

789).

143Id. at 217.

144Id.

145Id. at the syllabus.

146Id. at 218.



the Court would have concluded that this was an order entered in a special

proceeding.147 This mistake would come back to haunt the Court in later cases.148

Another problem with the Polikoff decision concerns some superfluous dicta at

the end of the opinion. After holding that special proceedings would now be defined

as proceedings which were not previously actions at law or suits in equity, and were

specially created by statute, the Court should have stopped. Instead, the decision

concludes with the following bizarre paragraph:

We look next at the nature of the relief sought. Appellees sought redress

of an alleged wrong by filing a lawsuit in the court of common pleas.

This not a case wherein the aggrieved party filed a special petition seeking

a remedy that was conferred upon that party by an Ohio statute nor is it a

proceeding that represents what is essentially an independent judicial

inquiry. In examining the ultimate reviewability of the order, we find that

the facts needed to analyze this precise issue will be unchanged by the

ultimate disposition of the underlying action. The question of whether

appellees complied with Ohio R. Civ. P. 23.1 will be preserved

throughout this litigation. The underlying action can be distinguished

from a special proceeding in that it provides for an adversarial hearing on

the issues of fact and law which arise from the pleadings and which will

result in a judgment for the prevailing party.149

Though far from a model of clarity, this paragraph appears to add no fewer than

three additional tests for determining whether an action is a special proceeding: (1)

Does the action involve filing a “special petition” seeking a remedy conferred by

statute? (2) Is the proceeding one which represents what is essentially an

independent judicial inquiry? (3) Does it provide for an adversarial hearing on issues

147The complaint alleged various violations of the Fair Credit Reporting Act codified at 15

U.S.C. 1681 et seq. Polikof, 616 N.E.2d at 214. Civil liability for a violation of those

provisions is set out in 15 U.S.C. 1681n. Because this is an action specially created by statute,

which did not exist at common law or equity, it was in fact a special proceeding.

148See infra notes 155-161 and accompanying text. The Court made the same mistake in

another case decided the same day as Polikoff. In Bell v. Mt. Sinai Med. Ctr., 616 N.E.2d 181,

183-84 (Ohio 1993), a medical malpractice action, the Court noted that an ancillary

proceeding for prejudgment interest was a “special proceeding” because the right to obtain

prejudgment interest was statutory in nature and did not exist at common law. Rather than

focus on the request for prejudgment interest, however, the Court should have focused on the

underlying medical malpractice action, which obviously did exist at common law. See 67

OHIO JUR. 3D Malpractice § 1 (1999) (malpractice actions are loosely based on common law

negligence theories). A year later, the Court reversed itself and held that a request for

prejudgment interest was not a special proceeding. Moskovitz v. Mt. Sinai Med. Ctr., 635

N.E.2d 331, at paragraph four of the syllabus (Ohio 1994). However, the Court reached that

decision not because it finally realized that a request for prejudgment interest was an ancillary

proceeding to the underlying claim, but because it had come to the conclusion that such

proceedings did exist at common law after all. Id. at 347. Finally, in Walters v. Enrichment

Ctr. of Wishing Well, Inc., 676 N.E.2d 890, 893-94 (Ohio 1997), the Court came to the

realization that it is the underlying action which should be analyzed to determine if the case

involves a special proceeding and not the ancillary order being appealed.

149Polikoff, 616 N.E.2d at 218 (citations omitted).



of fact and law? The Court never defined many of these terms or explained the

parameters of the tests or how they would relate to the historical basis test set out in

the syllabus. As one commentator noted, rather than creating a simple and clear test

for determining what constitutes a special proceeding, the court’s standard is

“complex,” “prone to produce inconsistent results” and requires a multi-prong

analysis so subtle in its distinctions that it is likely to produce great confusion.150

Fortunately, that result has been avoided as most courts have simply ignored the

dicta. The General Assembly also eliminated any need to consider it by taking the

syllabus language from Polikoff and codifying it into section 2505.02(A)(2). This

new statutory definition eliminates any need to apply extraneous tests set out in the

body of the Polikoff opinion.

These problems notwithstanding, Polikoff also was not the panacea that resolved

all difficulties surrounding the determination of whether an action was a “special

proceeding.” To begin, there is still a substantial body of case law applying the

Amato balancing test and holding that a particular action is, or is not, a special

proceeding. Practitioners dealing with this issue in the courts of appeals must be

careful when citing cases prior to 1993 for the proposition that a particular order is

final and appealable. Those unfamiliar with the subtle nuances of this area of the

law could mistakenly cite a case in support of their contention that an order was final

and be unaware that the precedential underpinning of the case they are citing has

been explicitly or implicitly overruled.151

Further complicating matters is that the process of determining whether an action

previously existed at common law or equity is sometimes easier said than done. The

Supreme Court held in Bell v. Mt. Sinai Med. Ctr. that an action for pre-judgment

interest is a special proceeding because it “is purely statutory in nature and was

unavailable at common law”152 only to reverse itself the following year and come to

the opposite conclusion.153 Another example can be found in probate proceedings.

The various appellate districts in this State continue to split over the question of

whether probate actions are, in fact, special proceedings.154

150Buenger, supra note 79, at 22-23.

151Courts are not immune to this problem either. The Fourth Appellate District in State v.

Mounts, 644 N.E.2d 1129, 1130 (Ohio Ct. App. 1994), dismissed an appeal from an

administrative license suspension (ALS) based on the decision of Columbus v. Adams, 461

N.E.2d 887, at the syllabus (Ohio 1984). As was aptly noted by the dissent, however, Adams

was decided on the basis of the Amato balancing test which had since been overruled by

Polikoff and, thus, was no longer good authority. Mounts, 644 N.E.2d at 1130 (Harsha, J.,

dissenting). After that, most courts held that an ALS was a final appealable order. See

Vermilion v. McCullough, 666 N.E.2d 269, 271 (Ohio 1995); Ohio Bur. of Motor Vehicles v.

Williams, 647 N.E.2d 562, 563 (Ohio Ct. App. 1994). The Ohio Supreme Court finally

revisited the issue in State v. Williams, 667 N.E.2d 932, at paragraph two of the syllabus

(Ohio 1996), and held that an ALS was an order entered in a special proceeding (overruling

Adams).

152Bell, 616 N.E.2d at 183.

153Moskovitz v. Mt. Sinai Med. Ctr., 635 N.E.2d at 347.

154Cases indicating that these are not special proceedings include In re Estate of Pulford,

701 N.E.2d 55, 56-57 (Ohio Ct. App. 1997); In re Estate of Endslow, No. 99CA-F-07-37,

2000 WL 502819 (Ohio Ct. App. Apr. 12, 2000); In re Estate of Packo, No. L-99-1350, 2000

WL 191784 (Ohio Ct. App. Feb. 15, 2000); In re Estate of Adams, No. OT-98-047, 1999 WL



In addition, the Supreme Court’s mistaken focus on the procedural order in

Polikoff, rather than the underlying claim, led some courts to follow suit and consider

the ancillary orders being appealed rather than the case as a whole to determine if a

special proceeding was involved. In Niemann v. Cooley, the Hamilton County Court

of Appeals held that an order compelling production of psychiatric and counseling

information over an assertion of patient-physician privilege was a final order.155 The

Court acknowledged the Polikoff standard but reasoned that the case “should not be

read in so sweeping a fashion ‘that it renders all orders in suits that were recognized

at common law as not being final orders.’”156 The Court looked, instead, to the

nature of the privilege asserted rather than the underlying action. Concluding that

the privilege was statutory, the Court held that the order appealed was entered in a

special proceeding.157 Similarly, in Arnold v. Am. Natl. Red Cross, the Cuyahoga

County Court of Appeals found that an order compelling the disclosure of the

identity of a donor of blood infected with HIV was made in a special proceeding and

hence was a final order.158 In so doing, the Court reasoned that an analysis of

whether the underlying action was recognized at common law or in equity is only the

first inquiry.159 The case must be decided, however, by “reviewing the specific

proceeding in question leading to the order being appealed.”160 Inasmuch as

disclosure of HIV test results or diagnosis was barred by statute, the Court concluded

that the order being appealed emanated from a special proceeding.161 Though in

conflict with the Polikoff syllabus, Niemann and Arnold were both perfectly

1262074 (Ohio Ct. App. Dec. 30, 1999). Cases holding that probate proceedings are special

proceedings include In re Myers, 669 N.E.2d 53, 54 (Ohio 1995); In re Estate of Nussbaum,

No. C-990527, 2000 WL 1005201 (Ohio Ct. App. Jul. 21, 2000); In re Estate of Lilley, Nos.

CA99-07-083, CA99-07-084, CA99-08-087 & CA99-08-088, 1999 WL 1239470 (Ohio Ct.

App. Dec. 20, 1999); In re Estate of Knauff, No. 96CA623, 1997 WL 305232 (Ohio Ct. App.

May 27, 1997). A certified conflict between these cases was accepted for review by the Ohio

Supreme court in In re Estate of Bloom, 735 N.E.2d 455 (Ohio 2000), but was later dismissed

on application of the appellant. In re Estate of Bloom, 739 N.E.2d 813 (Ohio 2000). The

issue remains unresolved.

155637 N.E.2d 943, 948 (Ohio Ct. App. 1994).

156Id. (citing with approval Stevens v. Grandview Hosp. & Med. Ctr., No. 14042, 1993

WL 420127 (Ohio Ct. App. Oct. 20, 1993)).

157Id.

158639 N.E.2d 484, 490 (Ohio Ct. App. 1994).

159Id. at 489.

160Id. (emphasis added).

161Id. at 490. It is interesting to note that the underlying action in Niemann was for assault

and in Arnold it was negligence, both of which are tort actions that long existed at common

law. Had the Courts in these cases looked to the underlying actions, as directed by Polikoff,

rather than the specific nature of the order being appealed, they would have come to the

inexorable conclusion that these were not special proceedings and that the orders appealed

therein were simply interlocutory, non-appealable, discovery orders. This raises suspicion that

the courts may have purposely misdirected their analyses to the procedural orders, rather than

the underlying actions, in order to address the important privacy and confidentiality questions

at issue in the case.



consistent with the mistaken manner in which the Supreme Court applied its own

test.

Not every court followed the reasoning in Niemann and Arnold162 and the Ohio

Supreme Court eventually held that those two cases “misinterpreted” Polikoff.163 In

rather emphatic language, the Court made clear that it was the underlying action

rather than the order itself that was important:

Since there appears to be much confusion among appellate courts as to

precisely what was meant in the Polikoff syllabus, we will proceed to

clarify that syllabus paragraph. The determining factor of Polikoff is

whether the “action” was recognized at common law or in equity and not

whether the “order” was so recognized. In making the determination

courts need look only at the underlying action. The type of order being

considered is immaterial. To focus on the nature of the order itself is to

return to the balancing test of Amato. Such an approach is irreconcilable

with Polikoff …. Under Polikoff, it is the underlying action that must be

examined to determine whether an order was entered in a special

proceeding. In the case sub judice, the underlying action was an ordinary

civil action, seeking damages. It was recognized at common law and

hence was not a special proceeding.164

Another problematic area of the law since returning to a historical basis test has

been the field of domestic relations. One year after Polikoff, the Supreme Court

decided the case of State ex rel. Papp v. James.165 Although James was an original

action for writs of mandamus and prohibition, and had nothing whatsoever to do

with appellate jurisdiction over final orders, the Court inexplicably went out of its

way to enunciate that divorce was a special proceeding for purposes of section

2505.02.166 This pronouncement was made with respect to a change of custody order

rendered just a little over a week before entry of a “divorce decree” confirming that

judgment.167 Carried to its conclusion, reductio ad absurdum, this ruling would

seem to suggest that virtually any interlocutory order in a divorce proceeding is

immediately appealable. However, as most practitioners in the field would confirm,

emotions run high in domestic cases and allowing parties to immediately appeal

every single order therein, and frustrate their ex-spouse or drag the proceedings out

in endless appeals, is neither desirable nor practical.

162See, e.g., Uschold v. Cmty. Blood Ctr., 647 N.E.2d 816, 817 (Ohio Ct. App. 1994);

Turner v. Romans, No. 95APE05-528, 1995 WL 390933 (Ohio Ct. App. Jun. 30, 1995); In re

Grand Jury, Nos. 93CA09, 93CA10 & 93CA12, 1995 WL 365386 (Jul. 12, 1995) (entry on

Application for Reconsideration); see also McHenry v. Gen. Acc. Ins. Co., 662 N.E.2d 51, 52

(Ohio Ct. App. 1995) (Patton, J., concurring) (critical of Niemann and Arnold).

163Walters, 676 N.E.2d at 893.

164Id. at 893. The Supreme Court’s criticism of the lower appellate court in this case was a

little disingenuous given that the Supreme Court had also erroneously focused on the order

appealed, rather than the underlying action, in Polikoff, Bell and Moskovitz.

165632 N.E.2d 889 (Ohio 1994).

166Id. at 894-95.

167Id.



The James case is not without its critics and detractors.168 Many courts have

avoided the absurd results that would follow from strict compliance with James by

focusing attention on whether the order, even if made in a special proceeding, truly

affects a substantial right.169 Thus, in a good many cases, appeals from patently

interlocutory judgments have been dismissed on the basis that effective relief can be

had when all issues in the case are resolved.170 Depending on the order in question,

however, some courts have found that a substantial right is affected and allowed an

immediate appeal.171 The guiding principle to keep in mind with domestic cases is

that appellate courts are reluctant to allow piecemeal appeals on every issue unless

there is an express showing that one of the litigants will be irreparably harmed in the

absence of immediate review - that is to say, a “substantial right” must be clearly and

irrevocably affected. Otherwise, the entire matter can be reviewed once all of the

issues are resolved at the trial level.

These problems aside, the Supreme Court returned, at least theoretically, to a

more consistent and less subjective means of determining whether an action was, or

was not, a “special proceeding.” By focusing on whether the action previously

existed at common law or equity, or whether it was specially created by statute, the

Court re-implemented a historical basis test it first adopted over a century ago but

unfortunately failed to consistently apply. The Court even appeared to be correcting

its misguided focus on ancillary orders by re-emphasizing that it is the underlying

action, and not the order being appealed, which should be the focus of inquiry. All

these signs pointed to a more settled system of special proceeding jurisprudence.

Then came the decision in Stevens v. Ackman.172

This case involved a wrongful death action filed by Shira Stevens against Emily

Ackman and the city of Middletown, Ohio.173 The City moved for summary

168Two justices declined to join in that portion of the opinion because there was “no need”

to even reach that issue. Id. at 896-97 (Resnick & Wright, JJ., concurring in part and

dissenting in part). See also In re Estate of Pulford, 701 N.E.2d 55, 57 (Ohio Ct. App. 1997)

(Ford, J., writing for a unanimous court states that he does not agree with the “historical

rendition of the common law” as it was offered in James).

169Buck v. Buck, 660 N.E.2d 475, 476 (Ohio Ct. App. 1995) (finding that even when an

order is issued in a special proceeding, it is only immediately appealable provided it affects a

substantial right).

170Id. (order reducing child support arrearage to judgment but not determining motion for

contempt is not final); Haskins v. Haskins, 660 N.E.2d 1260, 1262 (Ohio Ct. App. 1995)

(order overruling motion to dismiss request to modify custody is not final); Koroshazi v.

Koroshazi, 674 N.E.2d 1266, 1268 (Ohio Ct. App. 1996) (order reducing child support

obligation but deferring custody issue is not final); Montecalvo v. Montecalvo, 710 N.E.2d

379, 380 (Ohio Ct. App. 1999) (order that parties undergo tests for purposes of resolving

custody motion not final).

171See, e.g., Hollis v. Hollis, 706 N.E.2d 798, 800 (Ohio Ct. App. 1997) (order

disqualifying counsel from representing one of the parties to a divorce is final); Langer v.

Langer, 704 N.E.2d 275, 278 (Ohio Ct. App. 1997) (summary judgment in favor of husband as

to wife’s entitlement to payments under antenuptial agreement found to be final).

172743 N.E.2d 901(Ohio 2001).

173Ms. Stevens’s son, Corey Banks, was killed in an automobile accident when the car,

driven by Ms. Ackman, went left of center and collided with an oncoming vehicle. The City



judgment asserting that it was entitled to statutory immunity. Its motion was denied

and the City appealed. The Court of Appeals determined that it had jurisdiction over

the case because the trial court’s order denying the City immunity affected a

substantial right and was entered in a special proceeding (i.e. a wrongful death

action).174 The Court went on to address the merits of the case, reversed the trial

court and entered summary judgment in favor of the City on the issue of immunity.

Finding its decision on the merits to be in conflict with another appellate district, the

Court of Appeals certified the case to the Ohio Supreme Court for final review and

determination. The Supreme Court never reached the merits but found, instead, that

the Court of Appeals had no jurisdiction to consider the matter in the first place. In

so doing, the Court decided that a wrongful death action was not a “special

proceeding” for purposes of section 2505.02.175

This decision overruled a large body of authority, which had come to the

opposite conclusion.176 However, this was not the most troubling aspect of the case.

In reviewing the majority opinion, it is possible to discern no less than three

additional tests for determining when a “special proceeding” is involved.177 The first

test applied by the Court was to determine whether a wrongful death action

“provide[d] for a remedy to be sought through ‘an original application to a court for

a judgment or an order’.”178 Though resolved in the negative, the Court was less than

specific in explaining why this test was significant, how a wrongful death complaint

was different from “an original application” or how a judgment for damages was

different from the “judgment or order” referred to in its new test. The second test

applied by the Court was culled from dicta in an old Minnesota case and queried

whether the action authorized “a special application to a court to enforce a right.”179

Again, while answering this in the negative, the Court gave no insight as to how a

wrongful death complaint authorized by section Chapter 2125 of the Ohio Revised

Code differed from a “special application” as such a proceeding was envisioned by

the Minnesota Supreme Court at the turn of the century. Finally, the Court asked if a

wrongful death claim provided “for what is essentially an independent judicial

inquiry.”180 The Court again concluded that the answer was no, but did not explain

of Middletown was joined as a defendant because it allegedly failed to properly maintain the

road on which the accident had occurred. Id. at 902.

174Stevens v. Ackman, No. CA99-03-0053, 1999 WL 125806 (Ohio Ct. App. Dec. 20,

1999).

175Stevens, 743 N.E.2d 901, at paragraph one of the syllabus (Ohio 2001).

176See, e.g., In re Estate of Pulford, 701 N.E.2d at 61; Uschold v. Cmty. Blood Ctr., 647

N.E.2d at 817; Mazurek v. Hoover, No. 00CA50, 2001 WL 243233 (Ohio Ct. App. Feb. 28,

2001; see also 1 OHIO JUR. 3D Actions § 126 (1998); MCCORMAC, WRONGFUL DEATH IN OHIO

§ 101 (1982).

177Though not entirely clear, these tests do not appear to be the same tests referred to in the

aforementioned Polikoff dicta. See supra notes 149-150 and accompanying text.

178Stevens, 743 N.E.2d at 906 (citing Missionary Society of M.E. Church v. Ely (discussed

supra)).

179Id. (citing Schuster v. Schuster, 87 N.W. 1014 (Minn. 1901).

180Id. (citing In re Estate of Wykoff (discussed supra)).



what it meant by an “independent judicial inquiry” or how such an independent

judicial inquiry was distinguishable from any other judicial inquiry in an action filed

in a court of law.

Not only did the Supreme Court appear to adopt these new tests, it also

misapplied its own test from Polikoff as well as the standard set out in section

2505.02(A)(2). The Court held that a wrongful death action was nothing more than

an “ordinary civil action seeking damages” which was “recognized at common law

and hence was not a special proceeding.”181 There are several flaws to this

reasoning. First, the phrase “civil action” as used in special proceeding

jurisprudence is a term of art and is not used in its literal sense.182 For instance, a

federal civil rights claim is a civil action seeking damages but nobody would

seriously consider that such a proceeding existed at common law or equity prior to

1853.183 Second, it is the origin of the action and not the nature of the remedy that

distinguishes a “special proceeding” from a non-special proceeding. The fact that

the litigant seeks monetary damages, over some other form of relief, should not be

the dispositive factor. Third, the Court contradicted its own prior case law in

announcing that wrongful death was an action “recognized at common law.”184 Less

than sixty years ago, in Sabol v. Pekoc, the Court noted that “[a]t common law there

is no action for wrongful death.”185

There was also obvious confusion on the part of the Court over the concepts of

“common law” and “equity” as well as the fact that both the Polikoff syllabus and

section 2505.02(A)(2) are phrased in the conjunctive. The Court acknowledged that

a wrongful death statute was first enacted in 1851.186 From there, however, the Court

leapt to the conclusion that wrongful death was an “action at law” because the

legislation pre-dated adoption of the Code of Civil Procedure by two years.187 This

was a complete misapplication of the pertinent tests. The standard set forth in

Polikoff and section 2505.02(A)(2) asks whether the action was recognized at

181Id.

182A “civil action” is usually thought of as including all actions other than criminal

proceedings. See BLACK’S LAW DICTIONARY 222 (5th ed. 1979). However, in Watson & Co.,

the Supreme Court previously explained that it was using the term “civil action” to denote

only those actions which did not exist at common law or equity prior to the adoption of the

Code of Civil Procedure in 1853. Watson & Co., 5 Ohio St. at 43-44.

183See generally 14 OHIO JUR. 3D Civil Rights § 1 et seq. (1995) (detailing federal and state

civil rights statutes imposing liability on those who the violate civil rights of another).

184Stevens, 743 N.E.2d at 906.

18576 N.E.2d 84, 87 (Ohio 1947); see also Pittsburgh, Cincinnati & St. Louis Ry. Co. v.

Hine, 25 Ohio St. 629, 634 (Ohio 1874) (the cause of action given by the wrongful death

statute “was not known at common law”). Had the Court wanted to overrule these prior

decisions, it should have done so explicitly rather than leave it to the bench and bar to try and

reconcile them.

186Stevens, 743 N.E.2d at 907.

187Id.



common law or equity and whether it was specially created by statute.188 The

common law consists of those rules and principles which derive their authority from

“usages and customs of immemorial antiquity” or from courts recognizing, affirming

and enforcing those usages and customs.189 At least one appellate court has defined

the common law as all statutory and case law background of England and the

American colonies before the revolution.190 Whichever definition one uses, it is

manifestly obvious that a claim for wrongful death, codified in 1851, is not a part of

the common law. Moreover, even if it was, the special proceeding test is phrased in

the conjunctive which is to say that an action must not only have existed at common

law, but must also not have been specially created by statute.191 Even if all the

aforementioned authorities were disregarded, and a wrongful death claim was

considered a part of the common law, the fact remains that the proceeding was

specially created by statute (as the Court acknowledged in its opinion) and was

therefore a special proceeding.

It is too early to tell what the precise effect will be from the Stevens decision.

There is a temptation to simply limit the case to its syllabus192 and consider the

opinion an anomaly that, hopefully, the Court will one day correct.193 Nevertheless,

the decision is out there and the legal community should be aware that the Court may

deviate again from strict compliance with its own standard for determining whether a

given action is a special proceeding. The better practice is still to approach this issue

as called for both by the syllabus in Polikoff and by the standard set forth in section

2505.02(A)(2) and inquire as to whether the proceeding can trace its origins back to

common law or to equity. If not, or if it was specially created by statute, then the

action is a special proceeding and one can go on to determine whether the order at

issue also affects a substantial right.194

188Polikoff, 616 N.E.2d 213, at paragraph one of the syllabus; OHIO REV. CODE

§ 2505.02(A)(2) (special proceeding means an action that is specially created by statute and

that prior to 1853 was not denoted as an action at law or equity).

189BLACK’S LAW DICTIONARY 250-251 (5th ed. 1979). This is in contradistinction to

statutory or legislative law. Id.

190In re Estate of Pulford, 701 N.E.2d at 60.

191See Jetter v. Abbott, No. 17888 (Ohio Ct. App. Jul. 30, 2000) (unreported).

192For cases decided prior to May, 2002, the syllabus of an Ohio Supreme Court decision

stated the law of Ohio. See former S.Ct.R.Rep.Op. 1(B). See also Williamson Heater Co. v.

Radich, 190 N.E. 403, at paragraph one of the syllabus (Ohio 1934); Baltimore & Ohio R.R.

Co. v. Baillie, 148 N.E. 233, at paragraph two of the syllabus (Ohio 1925). Where the justice

writing an opinion discussed matters, or gave expression to views not carried into the syllabus,

it was merely the personal opinion of the justice and was dicta. State ex rel. Donahey v.

Edmondson, 105 N.E. 269, 270 (Ohio 1913). Those observations or opinions were not

generally binding on lower courts. See State v. Boggs, 624 N.E.2d 204, 209 (Ohio 1993);

Ecker v. Cincinnati, 3 N.E.2d 814, 815 (Ohio Ct. App. 1936).

193At least one court has continued to opine that wrongful death actions did not exist at

common law - either unaware of Stevens or in defiance thereof. See Kissinger v. Pavlus, No.

01AP-1203, 2002 WL 1013085 (Ohio Ct. App. May 21, 2002).

194OHIO REV. CODE § 2505.02(B)(2). The Supreme Court has characterized the test for

determining finality as a two-step process with the first step being to determine whether the

action is a special proceeding and, only after resolving that in the affirmative, does one



D. Examples

Again, time and space constraints do not allow for an exhaustive list of all the

actions that have been determined to be (or not be) special proceedings. However, a

few examples shall follow. A wrongful death action is not a special proceeding195

and neither is an action in mandamus.196 Although crimes are statutory in nature,

criminal prosecutions existed prior to 1853 and thus are not considered special

proceedings.197 The Supreme Court has now made it abundantly clear that the

process of discovery is not, in and of itself, a special proceeding and that discovery

orders are typically not subject to immediate appeal.198 However, such orders may

be appealable if entered in special proceedings199 or made as part of a summary

application after judgment.200 Grand Jury proceedings existed at common law and,

hence, are not special proceedings.201 Adoptions are special statutory proceedings

that have no counterpart at common law.202 Actions in forcible entry and detainer are

proceed to the second step, which is determining whether a substantial right has been affected.

Stevens, 743 N.E.2d at 905. As a practical matter, though, it makes little difference which step

is focused on first. If both criteria are not satisfied, the judgment is not a final appealable

order.

195Stevens, 743 N.E.2d at paragraph one of the syllabus.

196State ex rel. White, 684 N.E.2d at 74 (complaints for writs of mandamus were

recognized at common law).

197State v. Saadey, No. 99CO49, 2000 WL 1114519 (Ohio Ct. App. Jun. 30, 2000); State

v. Serednesky, No. 99CA7, 1999 WL 1124763 (Ohio Ct. App. Nov. 22, 1999); State v.

Branham, No. H-95-066, 1995 WL 704100 (Ohio Ct. App. Nov. 27, 1995).

198Walters, 676 N.E.2d at 890; State ex rel. Steckman v. Jackson, 639 N.E.2d 83, at

paragraph seven of the syllabus (Ohio 1994).

199The action in Walters was an “ordinary civil action,” 676 N.E.2d at 893, and the order

at issue in Steckman was filed directly in a criminal case, 639 N.E.2d at 96, which is not a

special proceeding. See supra note 197 and accompanying text. Given that neither Walters

nor Steckman involved special proceedings per se, their holdings arguably do not apply to

discovery orders that, in fact, do emanate from special proceedings. This was precisely the

conclusion reached by several appellate courts in cases that involved discovery orders in

divorce proceedings. See, e.g., Shoff v. Shoff, No. 95APF01-8, 1995 WL 353874 (Ohio Ct.

App. Jul. 27, 1995); Whiteman v. Whiteman, No. CA94-12-229, 1995 WL 375848 (Ohio Ct.

App. Jun. 26, 1995) (both of which distinguished Steckman). Discovery orders in other sorts

of special proceedings should, at least theoretically, still be appealable. As a practical matter

though, even if entered in a special proceeding, the discovery order must still affect a

substantial right and this is where most litigants would run into difficulty. In the vast majority

of instances, it would be very difficult for litigants to show that they could not obtain effective

relief from the discovery order on appeal after the case is concluded. See supra notes 29-32

and accompanying text.

200See Kemper Sec., Inc. v. Schultz, 676 N.E.2d 1197, 1199 (Ohio Ct. App. 1996).

201In re Grand Jury, 667 N.E.2d 363 (Ohio 1996).

202In re Adoption of Greer, 638 N.E.2d 999 (Ohio 1994).



special proceedings203 as are parentage actions.204 When dealing with actions not

previously denoted by case law as a special or non-special proceeding, practitioners

should carefully research the origins of the action to ascertain whether it existed at

common law or equity prior to 1853 and whether it was specially created by statute.

Consistent application of that standard, directed to the underlying action rather than

the order being appealed, will go a long way to dispelling the Supreme Court’s past

analytical errors and providing a more settled special proceeding jurisprudence.

V. ORDERS THAT VACATE OR SET ASIDE A JUDGMENT OR GRANT A NEW TRIAL

The third category of final orders includes those that vacate or set aside a

judgment or grant a new trial.205 If the Ohio Supreme Court’s special proceeding

jurisprudence was characterized by its own internal conflicts and inconsistencies,

then the Court’s rulings in this particular area are demonstrative of conflict with the

General Assembly. This category was first introduced to the statutory framework of

final orders in 1937.206 Almost immediately, however, the legislation was struck

down as unconstitutional insofar as it made judgments granting a new trial final and

appealable.207 The Constitution was later amended208 and this provision was re-

enacted by the General Assembly.209 Once again, it was determined that an order

granting a new trial did not constitute a “judgment” or “final order” and that the

General Assembly had “no power or authority to provide for appeal of such

order.”210 The Court inexplicably reversed itself several years later and stated that, in

203Colombo Enterprises, Inc. v. Fegan, No. 78041, 2001 WL 17555 (Ohio Ct. App. Apr.

12, 2001); Bryant v. Dale, No. 98CA36, 1999 WL 731824 (Ohio Ct. App. Sep. 10, 1999); see

also Cuyahoga Metro. Hous. Auth. v. Jackson, 423 N.E.2d 177 (Ohio 1981).

204Sexton v. Conley, No. 99CA2655, 2000 WL 1137463 (Ohio Ct. App. Aug. 7, 2000);

Mullins v. Roe, No. 97CA2518, 1998 WL 282974 (Ohio Ct. App. May 15, 1998).

205OHIO REV. CODE § 2505.02(B)(3).

206See Am.H.B. No. 87, 117 Ohio Laws 615.

207Hoffman v. Knollman, 20 N.E.2d 221, at paragraph four of the syllabus (Ohio 1939).

From 1913 to 1945, Section 6, Article IV, Ohio Constitution, provided that courts of appeals

only had appellate jurisdiction in the trial of chancery cases and “to review, affirm, modify or

reverse . . . judgments . . .” THOMAS R. SWISHER, OHIO CONSTITUTION HANDBOOK 579-580

(1990). The Court in Hoffman, 20 N.E.2d at 227, reasoned that an order granting a new trial

did not come within the definition of a “judgment” for purposes of appellate jurisdiction

because the very nature of the decision granting a new trial showed that nothing had been

attained at that stage of the proceeding. Thus, the Court reasoned, the granting of a motion for

new trial was a “merely interlocutory step” in the progress toward finality and a judgment. Id.

208Effective January 1, 1945, Section 6, Article IV, Ohio Constitution, was amended to

provide that the courts of appeals would have appellate jurisdiction “as may be provided by

law to review, affirm, modify, set aside, or reverse judgments or final orders….” Swisher,

supra note 207, at 579 (emphasis added). This amendment gave the General Assembly power

to change the appellate jurisdiction of the Court of Appeals. Youngstown Mun. Ry. Co. v.

Youngstown, 70 N.E.2d 649, at paragraph one of the syllabus (Ohio 1946).

209H.B. No. 86, 122 Ohio Laws 754.

210Green v. Acacia Mut. Life Ins. Co., 100 N.E.2d 211, at paragraph four of the syllabus

(Ohio 1951).



those instances where a verdict is returned for one party and the other party’s motion

for new trial is sustained, there emerges from such sequence of events a final

appealable order.211 These apparently inconsistent rulings were finally resolved in

Price v. McCoy Sales & Service, Inc.212 wherein the Court held that the granting of a

motion for new trial was a final order for purposes of section 2505.02.213 It is now

well settled law that these orders are appealable.214 Although such appeals typically

arise as a result of motions filed pursuant to Ohio R. Civ. P. 59, they can also come

about as a result of new trials ordered pursuant to other rules.215

Orders that vacate, or set aside, a judgment had a slightly less tortured route to

becoming final and appealable. The Supreme Court ruled in Chandler & Taylor Co.

v. Southern Pacific Co., that an order vacating a default judgment, upon motion of

the defendant, filed at the same term, but more than three days after its rendition, was

not a final determination of the rights of the parties and was not reviewable unless

the court abused its discretion.216 It is important to keep in mind, though, that the

legislature had not yet tried to make such orders appealable and the Court was

merely construing the statute as it then existed in light of the order that was at issue

in that case. Subsequently, the Constitution was amended217 and legislation was

passed218 to include such orders within the rubric of a final order. Although

Chandler & Taylor Co. was never expressly overruled, its holding was implicitly

rejected by the Court in GTE Automatic Electric v. ARC Industries, which held that

an order setting aside a default judgment was a final order.219 Since that time, there

has been no question that a judgment granting Ohio R. Civ. P. 60(B) relief is a final

appealable order.220 By the same token, a judgment overruling an Ohio R. Civ. P.

60(B) motion for relief is also final and appealable.221

211Gray v. Youngstown Mun. Ry. Co., 117 N.E.2d 27, 29 (Ohio 1954).

212Price v. McCoy Sales & Service, Inc., 207 N.E.2d 236 (Ohio 1965).

213Id. at paragraph one of the syllabus (overruling Green and approving Youngstown Mun.

Ry. Co.).

214Colvin v. Abbey’s Rest., Inc., 709 N.E.2d 1156, 1159 (Ohio 1999); see also State, ex

rel. Roulhac, v. Probate Court, 255 N.E.2d 636, 637(Ohio 1970) (probate court order vacating

judgment and ordering new trial is final and appealable); Mayo v. Hall, Cuyahoga App. No.

41423 (Ohio Ct. App. Aug. 28, 1980) (unreported) (“[S]ince 1965, there has been no question

that a lower court decision granting a new trial is appealable.”). A trial court’s order granting

the defendant a new trial in a criminal case is, likewise, a final order. State v. Matthews, 691

N.E.2d 1041, at the syllabus (Ohio 1998). However, the State must seek leave to appeal

pursuant to OHIO REV. CODE § 2945.67(A). Id. at 1043.

215New trial orders pursuant to Ohio R. Civ. P. 49(B) are also final and appealable.

Colvin, 709 N.E.2d at 1159. Though the court of appeals is confined solely to ruling on the

propriety of the order and cannot review any of the other claimed errors. Id. at 1160.

216135 N.E. 620, at paragraph two of the syllabus (Ohio 1922).

217See supra note 208 and accompanying text.


219351 N.E.2d 113, at paragraph one of the syllabus (Ohio 1976).

220See, e.g., Bellamy v. Bellamy, 674 N.E.2d 1227, 1229 (Ohio Ct. App. 1996); Hopkins

v. Quality Chevrolet, Inc., 607 N.E.2d 914, 916 n.1 (Ohio Ct. App. 1992); Eads v. Spring, 529



VI. ORDERS THAT GRANT OR DENY A PROVISIONAL REMEDY

The fourth category of final orders, and the first of two new sections added by

Sub.H.B. No. 394, are those that grant or deny certain provisional remedies.222 A

“provisional remedy” for purposes of section 2505.02 is defined as a proceeding

ancillary to an action, including but not limited to, a proceeding for a preliminary

injunction, attachment, discovery of privileged matter, or suppression of evidence.223

Not every order granting or denying a provisional remedy is a final order, however.

The order granting that remedy must, in addition, satisfy both of the following

requirements:

(a) The order in effect determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of the

appealing party with respect to the provisional remedy.

(b) The appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings,

issues, claims and parties in the action.224

Although Sub.H.B. No. 394 made other changes to section 2505.02, the primary

impetus for the legislation was to allow for immediate appeals from these sorts of

N.E.2d 1280, 1282 (Ohio Ct. App. 1987). These authorities are all based on the premise that

the Ohio R. Civ. P. 60(B) order was entered with respect to a final judgment of the trial court.

Orders granting or denying Ohio R. Civ. P. 60(B) relief from non-final, interlocutory,

judgments are neither final nor appealable. See Wolford v. Newark City Sch. Dist. Bd. of

Educ., 596 N.E.2d 1085, 1086 (Ohio Ct. App. 1991); Wolf v. Associated Materials, No.

00COA01350, 2000 WL. 1262540 (Ohio Ct. App. Aug. 15, 2000).

221Colley v. Bazell, 416 N.E.2d 695, at paragraph one of the syllabus (Ohio 1980).

222See OHIO REV. CODE § 2505.02(B)(4).

223Id. at (A)(3). Careful attention must be paid to the unusual wording of this provision.

Generally speaking, a “proceeding” is the manner or process by which judicial business is

conducted before a court. BLACK’S LAW DICTIONARY 1083 (5th ed. 1979). A remedy is the

means by which a right is enforced or the violation of a right is prevented, redressed or

compensated. Id. at 1163. A “provisional remedy” is a remedy provided for in a temporary

process available in a civil action to secure against immediate loss, irreparable injury, etc.

while the principal action is pending. Id. at 1102. By defining a “provisional remedy” as an

“ancillary proceeding,” rather than the remedy awarded as part of that proceeding, the drafters

of this legislation clearly mixed up the concepts of “proceeding” and “remedy.” This error in

drafting is even more pronounced when considering the preamble to Sub.H.B. No. 394, which

explains that the purpose of the legislation is to specify circumstances under which an order

granting or denying a provisional remedy is a final order. This explanation treats the

provisional remedy as an order not as the proceeding from which that order emanated. The

General Assembly may want to consider amending the statute so as to correct its mistake and

define a provisional remedy as an order emanating from a proceeding ancillary to an action.

In the meantime, as the Supreme Court has noted, it is a misnomer to refer to the order being

appealed as the “provisional remedy.” See State v. Muncie, 746 N.E.2d 1092, 1098 (Ohio

2001).

224OHIO REV. CODE § 2505.02(B)(4)(a)-(b).



judgments.225 This was in response to the harsh results associated with the Supreme

Court’s decision in Walters v. The Enrichment Ctr. of Wishing Well, Inc.226 as well as

its explicit overruling of several lower appellate cases that allowed for immediate

appeal of discovery orders concerning confidential information.227 The intent of the

Judiciary Committee in passing this legislation was to carve out a niche for

interlocutory orders having the potential for irreparable injury and adopt the Amato v.

General Motors Corp. balancing test - weighing the expenditure of time and

resources from an immediate appeal against the urgency of the need for review and

the potential for irreversible harm.228 An excellent summary of these provisions, and

the purpose behind them, can be found in the reasoning of the Fifth Appellate

District in a case deciding that a ruling on a motion to change venue was not

immediately appealable:

The basic purpose of OHIO REV. CODE § 2505.02(A)(3) in categorizing

certain types of preliminary decisions of a trial court as final, appealable

orders is the protection of one party against irreparable harm by another

party during the pendency of the litigation.… The types of provisional

remedies listed under 2505.02(A)(3) include decisions that, made

preliminarily, could decide all or part of an action or make an ultimate

decision on the merits meaningless or cause other irreparable harm. For

instance, a preliminary injunction could be issued against a high school

football player preventing him from playing football his senior year based

on recruiting violations. The trial court could grant the attachment of

property for which the owner has a ready buyer. Discovery of privileged

material could force a person to divulge highly personal or sensitive

information. If evidence critical to the prosecution of a criminal case is

suppressed, the state could lose any meaningful chance at successful

prosecution of a criminal. The decision to deny a change of venue does

not result in any of the types of irreparable harm just listed. There is an

225See preamble to Sub. H.B. No. 394 declaring its purpose “[t]o amend Section 2505.02

of the Revised Code to specify circumstances under which an order granting or denying a

provisional remedy is a final appealable order . . . .” See also the Witness Information Form

completed by the Hon. Mike Fain prior to testifying before the Judiciary and Criminal Justice

Committee of the General Assembly. Judge Fain explained his support for Sub.H.B. No. 394

because it would “permit appellate courts to provide meaningful appellate remedies to parties

with meritorious appeals in certain cases where no meaningful remedy can be provided under

existing law.” The Seventh District Court of Appeals noted in Wilson v. Barnesville Hosp.,

Belmont App. No. 01-BA-40 (Ohio Ct. App. Dec. 21, 2001) (unreported), that the addition of

the “provisional remedy” provision to OHIO REV. CODE § 2505.02 was intended to prevent

disclosure of confidential information.

226676 N.E.2d at 894 (disallowing immediate appeal of an order permitting partial

discovery of confidential child abuse reports).

227See Niemann, 637 N.E.2d at 948 (order compelling production of psychiatric and

counseling information over patient-physician privilege); Arnold, 639 N.E.2d at 489 (order

compelling disclosure of identity of blood donor with HIV infected blood).

228See Tribett v. Mestek, Inc., Jefferson App. No. 99 JE 1 (Ohio Ct. App. Mar. 18, 1999)

(unreported). The essentials of the Amato balancing test can now be found at OHIO REV.

CODE § 2505.02(B)(4)(b).



adequate legal remedy from a decision denying a change of venue, after

final judgment. In other words, it may be expensive to get the cat back in

the bag, if a trial court errs when it denies a change of venue, but it can be

done. Whereas, when the types of decisions listed in 2505.02(A)(3) are

made, the cat is let out of the bag and can never be put back in.229

Despite its vernacular, the “cat out of the bag” standard is the best gage by which

to measure the potential for irreparable injury. For instance, in Walters, if the trial

court erred in allowing discovery of written documents pertaining to confidential

child abuse reports, it would be impossible to restore that confidentiality in an appeal

at the end of the case.230 The proverbial cat would be “out of the bag” at that point

and could not be put back in. Thus, the order would have been appealable under

section 2505.02(B)(4).231 So too in Arnold where the plaintiff sought to discover the

identity of a donor from whom he received blood infected with the HIV virus. Ohio

law generally prohibits disclosure of HIV test results.232 Once confidential

information of that sort is disclosed, it cannot be undisclosed in a subsequent appeal.

Consequently, an order requiring disclosure of such information should be

appealable under section 2505.02(B)(4).233

The Ohio Supreme Court first addressed the parameters of this new category of

final appealable order in State v. Muncie.234 That case involved an interlocutory

appeal of an order directing forced medication of a defendant in hopes of restoring

his competency to stand trial. The Twelfth District Court of Appeals dismissed the

case for lack of a final order holding that the forced medication directive neither

determined the action (i.e. the criminal case) nor arose in a special proceeding.235

The Court went on to rule that the directive also did not grant or deny a provisional

remedy because it was not in the nature of a preliminary injunction, discovery of

privileged matter or suppression of evidence.236 A discretionary appeal to the

Supreme Court was allowed for the sole purpose of determining whether the order

was final and appealable.237

229Mansfield Family Rest. v. CGS Worldwide, Inc., No. 00-CA-3, 2000 WL 1886226

(Ohio Ct. App. Dec. 28, 2000) (citations omitted).

230Walters, 676 N.E.2d at 893-94.

231This is assuming (1) that the trial court’s judgment on a motion for protective order

qualified as an ancillary proceeding under OHIO REV. CODE § 2505.02(A)(3) and (2) that the

judgment, in effect, determined the action relative to such proceeding pursuant to OHIO REV.

CODE § 2505.02 (B)(4)(a). Both of these would seem to be safe assumptions to make.

232Arnold, 639 N.E.2d at 490 (citing OHIO REV. CODE § 3701.243).

233Here again, the assumption is made that the court’s discovery order arose in an ancillary

proceeding that essentially determined the action with respect to that proceeding.

234746 N.E.2d 1092 (Ohio 2001).

235State v. Muncie, No. CA99-07-076, 2000 WL 342131 (Ohio Ct. App. Apr. 3, 2000).

236Id.

237State v. Muncie, 735 N.E.2d 456 (Ohio 2000). The defendant was not allowed to

challenge the order on substantive grounds.



The Ohio Supreme Court reversed the dismissal of the appeal holding that a

judgment directing the involuntary administration of psychotropic medication was a

final order under section 2505.02(B)(4).238 In so doing, the Court ruled that a

judgment is final and appealable under the new statutory provision so long as it

meets three requirements: (1) the order must grant or deny relief in a certain type of

proceeding known as a “provisional remedy;” (2) the order must both determine the

action with respect to the provisional remedy and prevent a judgment in favor of the

appealing party with respect to the provisional remedy; and (3) the reviewing court

must decide that the party appealing from the order would not have a meaningful or

effective remedy by an appeal following final judgment as to all proceedings, issues,

claims and parties in the action.239

Insofar as the first part of this test was concerned, the Court concluded that the

appellate court took too restrictive a view of provisional remedies when noting that a

forced medication order did not fall into the categories of a preliminary injunction,

discovery of privileged matter or suppression of evidence. The Court stated that the

examples of provisional remedies set out in section 2505.02(A)(3) are non-

exhaustive.240 Indeed, the statute’s definition of a provisional remedy as any

“proceeding ancillary” to an action necessitates that a wider array of proceedings be

considered. The Court noted that an ancillary proceeding is one that is attendant

upon or aids another proceeding—one that is auxiliary or subordinate to the principal

action.241 Given this broader definition, the Court reasoned that a proceeding seeking

involuntary medication of a criminal defendant in hopes of restoring his competency

to stand trial aids in the resolution of the criminal proceeding and is thus ancillary to

that proceeding and qualifies for treatment as a provisional remedy.242 Turning to the

second part of the test, the Court quickly noted that the order appealed determined

the action against appellant with respect to the ancillary proceeding by directing that

he be medicated against his will.243 The Court further held that the order prevented a

judgment in favor of appellant with respect to that proceeding because it made no

provision for him to make any future challenge to the administration or dose of

medication being given to him.244 Finally, on the issue of whether appellant could be

afforded a meaningful or effective remedy by appeal following final judgment on the

criminal prosecution, the Court held that he could not.245 Much like the “cat out of

the bag” colloquialism, the Court phrased the pertinent question as whether the

238Muncie, 746 N.E.2d 1096, at paragraph two of the syllabus.

239Id. at 1097.

240Id. at 1099.

241Id. at 1100 (citing Bishop v. Dresser Indus., 730 N.E.2d 1079, 1081 (Ohio Ct. App.

1999) and Sorg v. Montgomery Ward & Co, Inc., No. E-98-057, 1998 WL 904945 (Ohio Ct.

App. Dec. 17, 1998)).

242Id. at 1100.

243Muncie, 746 N.E.2d at 1100.

244Id. at 1101.

245Id. at 1101-02.



“proverbial bell” could be “unrung” in any future appeal.246 Involuntary medication

is a highly intrusive procedure and violates very important liberty interests protected

by the Fourteenth Amendment Due Process Clause.247 The violation of those

interests cannot be undone in a future appeal. Further, as the Court noted, the drugs

to which appellant was to be subjected carried the potential for severe or even fatal

side effects, which also could not be undone in a future appeal.248 Given these

factors, the Court concluded that the order compelling involuntary medication was

one granting or denying a provisional remedy and was thus appealable under section

2505.02(B)(4).249 The matter was remanded to the appellate court for a review of the

order on its merits.

The Muncie case notwithstanding, interlocutory appeals from orders which grant

or deny provisional remedies are a relatively new occurrence in Ohio and it will be

some time before there is a settled body of law on this issue.250 However, some

expected trends have developed. Orders granting discovery of privileged or

confidential materials are now largely appealable251 though orders to produce such

materials for in camera inspections by the court are not.252 Parties may appeal

interlocutory orders compelling the disclosure of trade secrets during discovery,253

246Id. at 1101 (citing Gibson -Myers & Assocs. v. Pearce, No. 19358, 1999 WL 980562

(Ohio Ct. App. Oct. 27, 1999), and Cuervo v. Snell, Nos. 99AP-1442, 99AP-1443 & 99AP-

1458, 2000 WL 1376510 (Ohio Ct. App. Sep. 26, 2000).

247See Riggins v. Nevada, 504 U.S. 127, 134 (1992).

248Muncie, 746 N.E.2d at 1102.

249Id. at 1092.

250An example of the “unsettled” state of the law in this area is the disagreement between

appellate districts over whether an order removing the executor of an estate is appealable as an

order granting or denying a provisional remedy. The Seventh and Tenth Districts have

answered this question in the affirmative. See In re Estate of Geanangel, 768 N.E.2d 1235,

1239 (Ohio Ct. App. 2002); In re Estate of Nardiello, No. 01AP-281 2001 WL 1327178 (Ohio

Ct. App. Oct. 30, 2001). Whereas the Sixth District has answered it in the negative. See In re

Estate of Gannett, Huron No. H-01-047 (Ohio Ct. App. Nov. 27, 2001) (unreported).

251See, e.g., McPherson v. Goodyear Tire & Rubber Co., 766 N.E.2d 1015 (Ohio Ct. App.

2001) (appeal allowed on denial of protective order without any discussion of the

jurisdictional issue); Nester v. Lima Mem. Hosp., 745 N.E.2d 1153, 1155 (Ohio Ct. App.

2000); Wilson v. Barnesville Hosp., No. 01-BA-40, 2001 WL 1647298 (Ohio Ct. App. Dec.

21, 2001); Indiana Ins. Co. v. Hardgrove, No. 98AP-910, 1999 WL 224433 (Ohio Ct. App.

Apr. 15, 1999). This is not to say, however, that every discovery order concerning privileged

or confidential material will automatically be considered a final order. Nester, 745 N.E.2d at

1157 (Walters, J., dissenting). Appellants must also show that the requirements of OHIO REV.

CODE § 2505.02(B)(4)(a)&(b) have been met.

252See, e.g., Ingram v. Adena Health Sys., 761 N.E.2d 72, 74 (Ohio Ct. App. 2001); Gupta

v. Lima News, 757 N.E.2d 1227, 1229-30 (Ohio Ct. App. 2001). The reason for this is

intuitive. Should the court examine the materials in camera and decide they should not be

disclosed to the party requesting them, then nobody’s rights have been irreparably injured.

253Gibson-Myers & Assoc., Inc. v. Pearce, No. 19358, 1999 WL 980562 (Ohio Ct. App.

Oct. 27, 1999).



orders that disqualify counsel from representing them during the proceedings,254

orders that impose monetary sanctions which are not stayed and can be collected

immediately255 and orders enforcing a forum selection clause in a contract and

transfer of a case to another state court.256 Summary judgment proceedings are not

provisional remedies,257 nor are orders denying a stay of the case,258 or proceedings

on a motion to dismiss a criminal prosecution on double jeopardy grounds.259 A

judgment denying the State’s request to bind a juvenile offender over to adult court

has been successfully appealed as an order denying a provisional remedy.260

Although “suppression of evidence” was expressly included in the statute as a

“provisional remedy,”261 several cases have held that judgments overruling motions

to suppress evidence are not immediately appealable.262 The reasoning of these

courts has been that the criminal defendants could still prevail at trial and, even if

they did not, could still seek a stay of execution pending appeal.263 However, as one

judge has aptly noted, the fact that the General Assembly included “suppression of

evidence” under the new rubric of “provisional remedy” lends support to the

argument that it intended to change existing law and make such rulings immediately

appealable.264 The State could already appeal an adverse ruling on such a motion265

and, thus, there would have been little reason to include this language in the

amended statute unless the legislature intended to allow immediate appeals by

254Scaccia v. Dayton Newspapers, Inc., Nos. 18435 & 18729, 2001 WL 1517043 (Ohio Ct.

App. Nov. 30, 2001).

255Pinnacle Tech. Res., Inc. v. Shafer Consulting Group, Inc., No. 00AP-1291, 2001 WL

1117315 (Ohio Ct. App. Sep. 25, 2001).

256Overhead, Inc. v. Standen Contracting, No. L-01-1397, 2002 WL 398342 (Ohio Ct.

App. Mar. 11, 2002).

257Bishop v. Dresser Indus., Inc., 730 N.E.2d 1079, 1081 (Ohio Ct. App. 1999); Tribett v.

Mestek, Inc., No. 99 JE 1, 1999 WL 159216 (Ohio Ct. App. Mar. 18, 1999). Ohio R. Civ. P.

56(A)&(B) allow for summary judgment on claims, counterclaims and cross-claims which are

the very nature of the proceeding and cannot be characterized as “ancillary” to the main

action.

258Meldrum v. Meldrum, No. L-02-1204, 2002 WL 1782225 (Ohio Ct. App. Jul. 22,

2002).

259State v. Hubbard, 734 N.E.2d 874, 876 (Ohio Ct. App. 1999); State v. Prokos, No.

00CA02, 2000 WL 714999 (Ohio Ct. App. May 31, 2000).

260In re Cline, No. 19082, 2002 WL 63794 (Ohio Ct. App. Jan. 14, 2002).

261OHIO REV. CODE § 2505.02(A)(3).

262State v. Ricciardi, 733 N.E.2d 291, 294-295 (Ohio Ct. App. 1999); State v. Lebron, No.

99CA35, 1999 WL 1124762 (Ohio Ct. App. Nov. 22, 1999).

263Ricciardi, 733 N.E.2d at 294-95, (citing State v. Smith, Portage App. No. 98-P-0116

(Ohio Ct. App. Jan. 29, 1999) (unreported)).

264Ricciardi, 733 N.E.2d at 295-96 (Cox, P.J., dissenting).

265See OHIO REV. CODE § 2945.67(A); Ohio R. Crim. P. 12. See also supra, notes 75-76,

and accompanying text.



criminal defendants if their suppression motions were denied. Some further

clarification on this issue is obviously needed.

All of these cases illustrate the paramount need to show danger of irreparable

harm in order to have immediate review of the judgment being appealed. The policy

of this State has long been to discourage interlocutory appeals266 and section

2505.02(B)(4) should be read in light of that policy. Only in highly unusual

circumstances, where irreparable damage will be done and cannot be undone once

the case is resolved, should the appeal be allowed. Appellate courts will

undoubtedly be vigilant in making sure that this exception does not subsume the

general rule against interlocutory appeals. Practitioners must be clear in describing

how their clients could not be afforded an effective or meaningful remedy if forced

to wait to appeal the order until resolution of all issues, claims and proceedings in the

action.

VII. ORDERS DETERMINING CLASS ACTION STATUS

The fifth category of final orders, and the second new provision added by

Sub.H.B. No. 394, are orders that determine whether a case can be maintained as a

class action.267 Prior to its statutory inclusion, this variety of orders also enjoyed a

rather disparate treatment. The Ohio Supreme Court first addressed the issue in

Roemisch v. Mutual of Omaha Ins. Co.268 and held that orders denying class action

status were final and appealable for purposes of section 2505.02.269 The Court

analyzed the order under the first part of the statute, as it then existed, holding that

such orders affected a substantial right and determined the action by foreclosing any

judgment for, or against, the class.270 The Court also reasoned that the underlying

purpose of section 2505.02 was to limit the number of appeals. If class status was

denied, the number of individual actions filed could approach the magnitude of the

number of class members and possible appeals from those actions would far exceed

any piecemeal appeals arising from a unified class action. Thus, the Court believed

judicial economy was better served at both the trial and appellate levels by making

such determinations immediately appealable.271

The Court came to a similar conclusion, albeit for different reasons, seven years

later in Amato v. General Motors Corp.272 This time, the issue was whether an order

granting class action status was also a final order. The Court resolved that issue in

266See supra notes 18-20 and accompanying text.

267See OHIO REV. CODE § 2505.02(B)(5).


269Id.

270Id. at 388.

271Id. at 389. This ruling was not unanimous. Several justices noted that the order

denying class status was “interlocutory inasmuch as it [did] not determine the action or

prevent final judgment in plaintiff’s individual action.” Id. at 391 (Corrigan & Brown, JJ.,

dissenting). Though it was conceded that the order was tantamount to dismissing the action as

to all other members of the proposed class, those members were not foreclosed from

proceeding individually. Roemisch, 314 N.E.2d at 391.




the affirmative but, rather than analyze the order under the first part of section

2505.02 as was done in Roemisch, the Court chose to consider the order as a “special

proceeding.”273 The Court offered no explanation as to why a different portion of the

statute was employed. The Court simply applied the aforementioned “balancing

test” and concluded that an order certifying a class action was made in a special

proceeding and was a final appealable order.274

Although analytically inconsistent with one another, Roemisch and Amato were

both expressly affirmed by the Ohio Supreme Court in Dayton Women’s Health Ctr.

v. Enix.275 This case involved an action brought by workers at a women’s health

clinic against a certified defendant class of protestors. After class certification, the

case proceeded on its merits to a final resolution at which time a permanent

injunction was issued against the protestors. The protestors appealed both the class

certification and the remedy awarded against them. The Court of Appeals modified

and affirmed the permanent injunction but held that the class certification was a final

order that should have been appealed within thirty days after it was rendered.

Because an appeal was not taken, the Court ruled that the issue of class certification

could no longer be reviewed. The matter was then appealed to the Ohio Supreme

Court, which affirmed citing both Roemisch and Amato for the proposition that class

certifications were appealable orders and, thus, subject to the time limit provisions

set forth in App. R. 4(A).276

Once Amato was overruled, however, there was no longer any clear authority as

to whether an order certifying a class action was still a final appealable order. The

issue came up again, post-Polikoff, in Chamberlain v. AK Steel Corp.277 and was

answered in the negative.278 In that case, a group of steel workers sought, and were

granted, plaintiff class status in a lawsuit against their employer for exposing them to

asbestos in their place of employment. AK Steel Corporation filed an immediate

appeal of the class certification order but its case was dismissed for lack of a final

appealable order.279 The Court acknowledged that Amato had been overruled and

that the action brought by Chamberlain and the other members of the plaintiff class

did not fall within the parameters of a “special proceeding” as defined by Polikoff.

Thus, the question boiled down to whether Roemisch was controlling authority and

whether an order granting class certification “determined the action” in the same way

273Id. at 455.

274Id. at 456.


276Dayton Women’s Health Ctr., 555 N.E.2d at 958-59. Subsequent to this decision, and

in response thereto, Ohio R. App. P. 4 was amended to allow parties to appeal “partial final

judgments” either immediately or at the end of the entire case. See Ohio R. App. P.4, Staff

Notes (1992).

277696 N.E.2d 569 (Ohio 1998).

278Id. The Supreme Court’s decision in this case is merely a one line summary affirmance

of the appellate court decision. Thus, all future citations to this case are to the Court of

Appeals opinion.

279Chamberlain v. AK Steel Corp., Butler App. No. CA97-04-074 (Ohio Ct. App. Jan. 20,

1997) (unreported).



that an order denying such status. The Twelfth District Court of Appeals answered

that question in the negative. Parroting the language used in Amato, the defendant,

AK Steel Corporation, argued that “an order granting class certification similarly

determined the action and prevented a judgment ‘because the economics of a class

action are such that defendants are forced to settle the case in order to avoid the

extraordinary expense of litigating a class action and the risk of a potentially

bankrupting judgment on behalf of the class’.”280 The Court rejected that argument

for the following reasons:

It is undisputed that granting a motion for class certification will affect the

trial tactics employed by the defendants and may be an incentive to settle.

However, an order granting class certification does not have the effect of

determining the action and preventing a judgment in favor of the

defendants in the manner that an order denying class certification affects

the plaintiff class. While the defendants may be discouraged from

continuing the action if a class is certified, the plaintiff class is absolutely

precluded from continuing the action if certification is denied. The Court

therefore finds that an order granting class certification is fundamentally

different from an order denying class certification with respect to

designation as a final appealable order under OHIO REV. CODE §

2505.02.281

The appellate court thus dismissed the appeal282 which dismissal was later

affirmed by the Ohio Supreme Court.283 The whole issue is now moot, of course,

given that the General Assembly has expressly designated that judgments

determining whether a case may be maintained as a class action are final appealable

orders.284

VIII. MULTIPLE CLAIMS AND/OR MULTIPLE PARTIES

Implicit in the discussion thus far has been the assumption that there are only two

parties to the case in question and only one claim for relief. The analytical process

changes somewhat when there are multiple claims and/or multiple parties involved.

Under those circumstances, the provisions of Ohio R. Civ. P. 54(B) must also be

factored into determining whether an order is final and appealable.285 This rule

provides as follows:

When more than one claim for relief is presented in an action whether as a

claim, counterclaim, cross-claim, or third-party claim, and whether arising

out of the same or separate transactions, or when multiple parties are

280Id.

281Id.

282Id.

283Chamberlain, 696 N.E.2d at 569.

284OHIO REV. CODE § 2505.02(B)(5).

285In re Berman, 590 N.E.2d 809, 811 (Ohio Ct. App. 1990); Gallucci v. Freshour, No.

99CA22, 2000 WL 864977 (Ohio Ct. App. Jun. 22, 2000); McGuire v. Mills, No. 96CA2191,

1997 WL 271731 (Ohio Ct. App. May, 21, 1997).



involved, the court may enter final judgment as to one or more but fewer

than all of the claims or parties only upon an express determination that

there is no just reason for delay. In the absence of a determination that

there is no just reason for delay, any order or other form of decision,

however designated, which adjudicates fewer than all the claims or the

rights and liabilities of fewer than all the parties, shall not terminate the

action as to any of the claims or parties, and the order or other form of

decision is subject to revision at any time before the entry of judgment

adjudicating all the claims and the right and liabilities of all the parties.286

Ohio R. Civ. P. 54(B) is based on Fed. R. Civ. P. 54(b) and provides for entry of

final judgment against one party in a multi-party or multi-claim action while the

action continues against the other parties.287 Historically, an appeal could not be

taken until all claims and parties in an action had been resolved.288 Permitting only

one appeal from an action was adequate at a time when most litigation involved only

two parties and one claim.289 However, as joinder of parties and claims became more

prevalent, it came to be accepted that denial of an immediate appeal from the

disposition of an identifiable and severable portion of a complex action might result

in an injustice.290 Ohio R. Civ. P. 54(B) was promulgated to make a reasonable

accommodation of the policy against piecemeal appeals with the possible injustice

sometimes created by the delay of appeals - a possibility rendered more likely by

modern procedural rules allowing liberalized joinder of parties and claims.291 Now,

where applicable, the provisions of Ohio R. Civ. P. 54(B) must be met in addition to

the requirements of section 2505.02 in order for a judgment to be considered final

and appealable.292

There are several important points for courts and practitioners to keep in mind

when confronted with multiple claims and Ohio R. Civ. P. 54(B). First, by its own

language, the rule applies only to claims. It does not apply to issues or remedies that

are component parts of that claim. Second, the order resolving that claim must still

be final under section 2505.02. The rule is not a means by which to circumvent the

general prohibition against interlocutory appeals and cannot make appealable an

order that is not final under the statute. Finally, an appropriate finding of “no just

reason for delay” is the sine qua non to immediate appealability. Without such

finding, the order is not final and the appeal must be dismissed. Even with such a

finding, the appellate court may determine that the finding was improper and dismiss

the appeal anyway. Each of these points is discussed in greater detail below.

286Ohio R. Civ. P. 54(B).

287See Staff Note.

288Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 540 N.E.2d 266, 270 (Ohio 1989).

289Id.

290Id.

291Id. See also Alexander v. Buckeye Pipe Line Co., 359 N.E.2d 702, 703 (Ohio 1977).

292State ex rel. Wright v. Ohio Adult Parole Auth., 661 N.E.2d 728, 731 (Ohio 1996); Chef

Italiano Corp. v. Kent State Univ., 541 N.E.2d 64, at the syllabus (Ohio 1989).



A. Ohio R. Civ. P. 54(B) Applies Only to Claims

By its express terms, Ohio R. Civ. P. 54(B) applies only where there is resolution

of one or more but fewer than all claims in a multi-claim action.293 The rule does not

apply where issues within a claim have been determined but other issues are left

unresolved. For instance, judgments that determine liability, but defer the issue of

damages, are not final and Ohio R. Civ. P. 54(B) cannot be used to make them

appealable.294 This is because damages are a remedy - part of the claim for relief -

rather than a separate claim in and of itself.295 For the same reason, Ohio R. Civ. P.

54(B) does not apply to procedural orders296 or to orders granting or denying a

“provisional remedy” under section 2505.02(B)(4).297 None of these judgments

determine an entire claim; they only resolve a component part of a claim.

As noted previously, compliance problems with Ohio R. Civ. P. 54(B) arise most

often in situations where the parties or the trial court lose track of all the competing

claims, cross-claims and counterclaims and one or more of them are left

inadvertently unresolved.298 In those cases, absent compliance with Ohio R. Civ. P.

54(B), the judgment sought to be appealed will not be final and appealable.299 The

one exception to this rule, where strict compliance with Ohio R. Civ. P. 54(B) is not

necessary, arises in those instances where the claims remaining for adjudication are

rendered moot by judgments already entered on other claims.300 Appellate courts

293The rule also applies where there are multiple parties but, because the presence of

multiple parties inevitably means multiple claims, the discussion is limited to that issue for the

sake of simplicity. Nevertheless if claims by, or against, all parties in a case have not been

resolved, then the trial court must include the appropriate Ohio R. Civ. P. 54(B) language to

make the judgment appealable.

294State ex rel. White, 684 N.E.2d at 74; State ex rel. A & D Ltd. P’ship v. Keefe, 671

N.E.2d 13, 15-16 (Ohio 1996).

295See Hitchings v. Weese, 674 N.E.2d 688, 698 (Ohio 1997) (Resnick, J., concurring); see

also McKee v. Inabnitt, No. 01CA711, 2001 WL 1512031 (Ohio Ct. App. Sep. 26, 2001);

Miller v. Biggers, No. 00CA2751, 2001 WL 1192123 (Ohio Ct. App. Aug. 13, 2001).

296Colonial Mtg. Serv. Co. v. Habitat Assoc., Franklin App. No. 76AP-597 (Ohio Ct. App.

Dec. 28, 1976) (unreported). See, e.g., Owens Flooring Co. v. Hummel Constr. Co., 749

N.E.2d 782, 784 (Ohio Ct. App. 2001) (Ohio R. Civ. P. 54(B) does not apply to orders

denying stay of action pending arbitration); Kagy v. Toledo-Lucas County Port Auth., 699

N.E.2d 566, 569 (Ohio Ct. App. 1997) (Ohio R. Civ. P. 54(B) does not apply to orders

denying summary judgment).

297Johnson v. Univ. Hosp. of Cleveland, No. 80117, 2002 WL 472298 (Ohio Ct. App.

Mar. 28, 2002); Premier Health Care Services, Inc. v. Schneiderman, No. 18795, 2001 WL

1479241 (Ohio Ct. App. Aug. 21, 2001).


299See, e.g., Karr v. JLH of Athens, Inc., No. 99CA57, 2000 WL 33226179 (Ohio Ct. App.

Dec. 4, 2000).

300See General Acc. Ins. Co. v. Ins. Co. of N. Am., 540 N.E.2d 266, 270-71 (Ohio 1989);

Wise v. Gursky, 421 N.E.2d 150, 152 (Ohio 1981).



will have jurisdiction in that event notwithstanding the absence of a finding of “no

just reason for delay.”301

B. The Claim Appealed Must Still be Final Under Section 2505.02

The corollary to the first rule, that Ohio R. Civ. P. 54(B) applies only to claims

and not to issues or component parts of a claim, is that the entire claim must be

resolved and be final under section 2505.02. A finding of “no just reason for delay”

pursuant to Ohio R. Civ. P. 54(B) does not make appealable an otherwise non-

appealable order.302 Careful attention must therefore be paid to what constitutes a

“claim.” Over the years, intermediate appellate courts have given various definitions

to “claim for relief” including “counts,” “issues,” “theories of entitlement,” “theories

of relief,” “distinct branch of a case” or “demand.”303 These definitions were either

wrong or too imprecise to provide a workable standard. The Ohio Supreme Court

gave a more precise definition in 1981 stating that a claim for relief, for purposes of

Ohio R. Civ. P. 54(B), was synonymous with a “cause of action.”304 A “cause of

action” is that set of facts which establish or give rise to a “right of action,” the

existence of which affords a party the right to judicial relief.305 “Cause of action” is

to be distinguished from the “action” itself, which is a judicial proceeding brought in

a court of law to vindicate the cause of action.306 These distinctions are critically

important because an action (whether in the form of a complaint, cross-complaint or

counter-complaint) may contain numerous “counts,” “theories,” or “demands” for

relief but still encompass only a single “cause of action” or “claim for relief.” For

instance, where a person suffers personal injury and property damage as the result of

a wrongful act, there is only a single “cause of action” even though the complaint

asserts counts in battery and trespass.307 Summary judgment rendered on one of

those counts, while the other count remains pending, would not be final and

appealable even with a finding of “no just reason for delay.” Consequently, before

including the Ohio R. Civ. P. 54(B) language in an entry, trial courts should consider

301See, e.g., Nichols v. Arnold, No. 01CA9 2001 WL 1682939 (Ohio Ct. App. Dec. 24,

2001) (judgment in favor of plaintiffs rendered moot an unresolved counterclaim asserting that

the complaint was frivolous); Ashbaugh v. Family Dollar Stores, No. 99CA11, 2000 WL

146391 (Ohio Ct. App. Jan. 20, 2000) (judgment finding that store was not liable in slip and

fall case rendered moot an unresolved subrogation claim).

302McCabe/Marra Co. v. Dover, 652 N.E.2d 236, 249 (Ohio Ct. App. 1995); Palmer v.

Westmeyer, 549 N.E.2d 1202, 1209 (Ohio Ct. App. 1988); Douthitt v. Garrison, 444 N.E.2d

1068, 1069-70 (Ohio Ct. App. 1981).

303Diane S. Leung, Note, The Application and Misapplication of Ohio Rule of Civil

Procedure 54(B), 39 CLEVE. ST. L. REV. 237, 257-258 (1991).

304Amato, 423 N.E.2d at 454.

305State, ex rel. Wilson v. Preston, 181 N.E.2d 31, at paragraph two of the syllabus (Ohio

1962); Baltimore & Ohio RR. Co. v. Larwill, 93 N.E. 619, 621 (Ohio 1910).

306See generally Baramore v. Washing, 160 N.E.2d 432, 434 (Ohio Com. Pl. 1959).

307See Henderson v. Ryan, 233 N.E.2d 506, 509 (Ohio 1968). This so-called “factual unit

theory” for defining a “claim for relief” is widely used in other states and federal courts and is

the position taken by the Restatement of Judgments 2d. Leung, supra note 303, at 259.



whether the partial judgment actually resolves an entire claim or just a particular

count or theory of recovery advanced as part of that claim.

C. The Trial Court Must Find “No Just Reason for Delay” to

Make the Order Appealable

As stated above, a final judgment on one or more but fewer than all claims in a

multi-claim action can be reviewed on appeal only after the trial court expressly

determines that there is “no just reason for delay.”308 Unless a judgment contains

that required phrase, the order is interlocutory, subject to future modification and is

neither final nor appealable.309 Courts have been fairly stringent in requiring the

precise language of that phrase to be used. Anything less is deemed insufficient.310

For instance, a trial court’s finding that an interlocutory order “shall constitute a final

judgment pursuant to Rule 54" has been deemed insufficient to make an

interlocutory order appealable under that rule.311

Even if the “no just reason for delay” language is included in the judgment entry,

this is still no guarantee that the order is appealable. The Supreme Court made clear

in Wisintainer v. Elcen Power Strut Co.312 that a trial court’s finding of “no just

reason for delay” is essentially a factual determination that allowing an interlocutory

appeal is “consistent with the interests of sound judicial administration.”313 As such,

the court’s finding is reviewable by appellate courts just like any other factual

finding.314 Where the record indicates that the interests of sound judicial

administration could be served by a finding of “no just reason for delay,” the trial

court’s determination must stand.315 However, where there is insufficient evidence to

support that determination, appellate courts may reverse the Ohio R. Civ. P. 54(B)

certification and dismiss the appeal.316

308Ohio R. Civ. P. 54(B).

309See 2 KLEIN & DARLING, CIVIL PRACTICE § 54-3 (1997). See also Noble v. Colwell, 540

N.E.2d 1381, 1385 (Ohio 1989); Stewart v. Midwestern Indemn. Co., 543 N.E.2d 1200, 1203

(Ohio 1989).

310For example, the Fourth Appellate District has frequently referred to this as the “magic

language” from Ohio R. Civ. P. 54(B). See, e.g., Cokonougher v. Loring, No. 99CA20, 2001

WL 243274 (Ohio Ct. App. Mar. 5, 2001); Max J. Colvin & Sons Trucking. v. Phillip Diniaco

& Sons, Inc., No. 87CA18, 1988 WL 85077 (Ohio Ct. App. Jul. 29, 1988); Rainsford v. Royal

Ins. Co. of Am., No. 1294, 1987 WL 7584 (Ohio Ct. App. Feb. 27, 1987).

311See, e.g., Mark-It Place Foods, Inc. v. New Plan Excel Realty Trust, Inc., Nos.

01SC2816 & 2817, 2002 WL 1676323 (Ohio Ct. App. Jul. 15, 2002).

312617 N.E.2d 1136 (Ohio 1993).

313Id. at paragraph one of the syllabus.

314Id. at 1138.

315Id. at paragraph two of the syllabus.

316The Supreme Court nevertheless made clear that, as with any other factual finding, trial

courts are entitled to a presumption of correctness and appellate courts should not substitute

their own judgment on the issue where there is some competent and credible evidence to

support the trial court’s determination. Id. at 1138.



Instances of appellate courts reversing trial court Ohio R. Civ. P. 54(B)

certifications are rare, but they do exist.317 Trial courts should therefore exercise

caution before certifying interlocutory orders as appealable under that rule. A

finding of “no just reason for delay” should not be made pro forma as “boilerplate”

language in a judgment entry.318 There must be good reason for trial courts to ignore

the general policy against piecemeal appeals and grant certification.319 Some have

suggested that Ohio follow the lead of the federal courts and require trial courts to

either explicitly set out in their judgment entries the reasons for making a Ohio R.

Civ. P. 54(B) certification320 or at least consider the criteria adopted by federal courts

when deciding whether to make a Ohio R. Civ. P. 54(B) certification.321 Those

criteria are, among others: (1) the relationship between the adjudicated and

unadjudicated claims, (2) the possibility that the need for review may be mooted by

future decisions in the trial court, (3) the possibility that a reviewing court might be

forced to consider the same issue a second time, and (4) other considerations such as

delay, economic oppression and solvency, shortening the time of trial, frivolity of

competing claims and expense to the parties involved.322 The first option, that trial

courts explain their reasons for making a Ohio R. Civ. P. 54(B) determination, would

be burdensome to a system already straining against ever increasing workloads. The

second option, however, is eminently reasonable and trial courts should keep in mind

the aforementioned federal criteria when determining whether to make a Ohio R.

Civ. P. 54(B) certification. Other states have already followed suit323 and, if trial

courts are unwilling to engage in a deeper analysis of the issue, then appellate courts

should step in and ensure that a finding of “no just reason for delay” is indeed

supported by the evidence and consistent with state policy against piecemeal appeals.

Interlocutory appeals should be the exception and not the general rule.

IX. CONCLUSION

Appellate jurisdiction is an area of the law rarely given much thought until

counsel has an appeal dismissed or a trial court has a case returned to it for lack of a

final appealable order. To avoid those situations, practitioners and trial court judges

need a working knowledge of the jurisdictional requirements determining when

317See, e.g., Ranlom, Inc. v. Mikulic, No. C-971066, 1999 WL 49350 (Ohio Ct. App. Feb.

5, 1999) (Ohio R. Civ. P. 54(B) certification improvidently made); Bell Drilling & Prod. Co.

v. Kilbarger Constr., Inc., No. 96CA23, 1997 WL 361025 (Ohio Ct. App. Jun. 26, 1997) (case

involved “one of those rare occasions when the trial court’s [Ohio R. Civ. P. 54(B)]

certification is not justified.”).

318Wisintainer, 617 N.E.2d at 1139.

319See Leung, supra note 303, at 249.

320Id. at 250 (citing Allis Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364

(CA. Pa. 1975) (“A proper exercise of discretion under Rule 54(b) requires the district court to

do more than just recite the 54(b) formula of ‘no just reason for delay.’ The court should

clearly articulate the reasons and factors underlying its decision to grant 54(b) certification.”)

321Wisintainer, 617 N.E.2d at 1144 (Resnick, J., dissenting).

322Id. (citing Allis Chalmers Corp., 521 F.2d at 364).

323See, e.g., Vanover v. Kansas City Life Ins. Co., 535 N.W.2d 424, 426 n.1 (N.D. 1995);

Banks v. State Farm Ins. Co., 708 So. 2d 523, 525 (La. Ct. App. 1998).



courts of appeals can hear cases. Ohio appellate courts only have jurisdiction to

review trial court judgments that are “final” orders as defined by section 2505.02 and

comply with Ohio R. Civ. P. 54(B) where applicable. These provisions should be

construed, and applied, consistent with the important public policy interests against

allowing piecemeal appeals. More importantly, however, the Ohio Supreme Court

needs to be more careful and consistent in its jurisprudence in this area. This is

particularly true in those cases dealing with “special proceedings” where the Court

has frequently made pronouncements which are, at best, confusing and, at worst,

analytically inconsistent with prior decisions. Recent statutory amendments should

clear up some of the confusion but practitioners and trial court judges need to be

aware of pertinent case law to fully understand and properly apply those provisions.

With careful and considered attention paid to section 2505.02 and Ohio R. Civ. P.

54(B), appellate courts can avoid dismissing so many appeals for lack of jurisdiction

and practitioners and trial courts will have greater certainty that, when a case is

appealed, it will actually be decided on the merits rather than dismissed on what is

often (albeit erroneously) considered a “technicality.”


appellate jurisdiction in ohio over final appealable orders

Documents